Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 11.02, Section 11.03(b) and Section 11.07(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), Common Shares, together with cash, if applicable, in lieu of delivering any fractional Common Shares in accordance with subsection (j) of this Section 11.02 (“Physical Settlement”) or a combination of cash and Common Shares, together with cash, if applicable, in lieu of delivering any fractional Common Shares in accordance with subsection (j) of this Section 11.02 (“Combination Settlement”), at its election, as set forth in this Section 11.02. (i) All conversions for which the relevant Conversion Date occurs on or after September 1, 2025 shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs on or after September 1, 2025, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion Date (or the period described in the third immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the close of business on the second Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs on or after September 1, 2025, no later than September 1, 2025). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. By notice to Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 1, 2025, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through a Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 for all Conversion Dates occurring subsequent to delivery of such notice. Not later than three Business Days after providing notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee) of an irrevocable election with respect to the Settlement Method as described in the immediately preceding sentence, the Company shall issue a Current Report on Form 8-K or press release or otherwise provide public disclosure in a manner compliant with Regulation FD announcing that the Company has made such irrevocable election. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its option. (iv) The cash, Common Shares or combination of cash and Common Shares in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of Common Shares equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional Common Share, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional Common Shares. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section 11.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 11.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any 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 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 11.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 12.03. 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, subject, in the case of Global Notes, to the rules of the applicable Depositary. (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 11.03(b) and Section 11.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any Common Shares are due to converting Holders, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of Common Shares to which such Holder shall be entitled, in certificate form or in book-entry format, in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company (1) in the case of a Global Note, shall cause the principal balance of a Global Note to be adjusted in accordance with the procedures of the Depositary in effect at that time or (2) in the case of a Physical Note, shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any Common Shares upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the 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 immediately preceding sentence. (f) Except as provided in Section 11.04, no adjustment shall be made for dividends on any Common Shares issued upon the conversion of any Note as provided in this Article 11. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below, and the Company shall not adjust the Conversion Rate to adjust 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 excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and Common Shares, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable, on such Interest Payment Date, on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts exist at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name 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 (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects (or is deemed to have elected) to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional Common Shares upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Common Shares issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of Common Shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional Common Shares remaining after such computation shall be paid in cash.

Appears in 2 contracts

Samples: Second Supplemental Indenture (TimkenSteel Corp), Convertible Notes Exchange Agreement (TimkenSteel Corp)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~14.02, Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~14.02. (i) All conversions for which the relevant Conversion Date occurs on or after September 1, ~~2025~~ 2019 shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs on or after September 1, ~~2025~~2019, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion Date (or the period described in the third immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the close of business on the ~~second~~ Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs on or after September 1, ~~2025~~2019, no later than September 1, ~~2025~~2019). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. ~~By notice to Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee), the Company may,~~ At any time prior to September 1, ~~2025~~2019, ~~at its option,~~ the Company may irrevocably elect to ~~satisfy its Conversion Obligation with respect to the Notes~~ settle all conversions through a Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 for all Conversion Dates occurring subsequent to delivery of such notice. Not later than three Business Days after providing notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee) of an irrevocable election with respect to the Settlement Method as described in the immediately preceding sentence, the Company shall issue a Current Report on Form 8-K or press release or otherwise provide public disclosure in a manner compliant with Regulation FD announcing that the Company has made such irrevocable election. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its optionelects. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 30 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 30 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common ~~Share~~Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~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 ~~11.02(h~~14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile 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 shares of Common ~~Shares~~ Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer ~~documents~~ documents, (4) if required, pay all transfer and similar taxes as set forth in Section 14.02(d) and 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 ~~11.02(h~~14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~12.03~~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~~, subject, in the case of Global Notes, to the rules of the applicable Depositary~~. (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 ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the ~~second~~ third Business Day immediately following the relevant Conversion Date, if the Company elects Physical ~~Settlement~~Settlement (unless such Conversion Date is on or after the Regular Record Date immediately preceding the Maturity Date, in which case the Company shall deliver the consideration due in respect of such Conversion Obligation on the Maturity Date), or on the ~~second~~ third Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver ~~(if applicable)~~ to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be ~~entitled, in certificate form or in book-entry format,~~ entitled in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company (1) in the case of a Global Note, shall cause the principal balance of a Global Note to be adjusted in accordance with the procedures of the Depositary in effect at that time or (2) in the case of a Physical Note, shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common ~~Shares~~ Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common ~~Shares~~ Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section ~~11.04~~14.04, no adjustment shall be made for dividends on any shares of Common ~~Shares~~ Stock issued upon the conversion of any Note as provided in this Article 1114. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below~~, and the Company shall not adjust the Conversion Rate to adjust 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 ~~excluding~~not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~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 ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts ~~exist~~ exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date and any Fundamental Change Repurchase Date described in clause (2) of the immediately preceding sentence shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the shares of Common ~~Shares~~ 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 (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common ~~Shares~~ Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of ~~Common Shares~~ shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional ~~Common Shares~~ shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Samples: Indenture (Brocade Communications Systems Inc)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~14.02, Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~14.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~September 1~~December 15, ~~2025~~ 2022 shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs on or after ~~September 1~~December 15, ~~2025~~2022, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion Date (or the period described in the third immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the ~~Company, through the Trustee,~~ Company shall deliver such Settlement Notice to the Conversion Agent and converting Holders no later than the close of business on the ~~second~~ first Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs on or after ~~September 1~~December 15, ~~2025~~2022, no later than ~~September 1~~December 15, ~~2025~~2022). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. By notice to Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 1, 2025, at its option, irrevocably elect to satisfy its Conversion Obligation with respect Notwithstanding anything to the Notes through a Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 for all Conversion Dates occurring subsequent to delivery of such notice. Not later than three Business Days after providing notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee) of an irrevocable election with respect to the Settlement Method as described contrary in the ~~immediately preceding sentence~~foregoing, the Company shall ~~issue a Current Report on Form 8-K or press release or otherwise provide public disclosure~~ be permitted to irrevocably elect Physical Settlement in ~~a manner compliant~~ any Certain Distributions Notification and any such election would be applicable to conversions with ~~Regulation FD announcing~~ Conversion Dates that occur after delivery to the ~~Company has made such irrevocable election. For~~ Holders of the ~~avoidance of doubt, such an irrevocable election, if made, will be effective without~~ Certain Distributions Notification until the ~~need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its option~~Certain Distributions Conversion Period End Date. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion ~~Date~~Date (plus cash in lieu of any fractional share of Common Stock issuable upon conversion); (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 40 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 40 consecutive Trading Days during the related Observation ~~Period~~Period (plus cash in lieu of any fractional share of Common Stock issuable upon conversion). (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common ~~Share~~Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~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 ~~11.02(h~~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 an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common ~~Shares~~ 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 ~~11.02(h~~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 11 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~12.03~~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~~, subject, in the case of Global Notes, to the rules of the applicable Depositary~~. (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 ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects to satisfy its Conversion Obligation through Physical Settlement, or on the second Business Day immediately following the last Trading Day of the Observation Period, in if the ~~case of~~ Company elects to satisfy its Conversion Obligation through any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to a converting ~~Holders~~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 shares of Common ~~Shares~~ Stock to which such Holder shall be entitled, in ~~certificate form or in~~ book-entry ~~format~~format through the Depositary, in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company (1) in the case of a Global Note, shall cause the principal balance of a Global Note to be adjusted in accordance with the procedures of the Depositary in effect at that time or (2) in the case of a Physical Note, shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common ~~Shares~~ Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common ~~Shares~~ Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section ~~11.04~~14.04, no adjustment shall be made for dividends on any shares of Common ~~Shares~~ Stock issued upon the conversion of any Note as provided in this Article 1114. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below~~, and the Company shall not adjust the Conversion Rate to adjust 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 excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date but prior to the open of business on the immediately following Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on ~~the corresponding~~ such Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so ~~converted~~converted on the corresponding Interest Payment Date (regardless of whether the converting Holder was the Holder of record on the corresponding Regular Record Date); provided that no such payment shall be required (1) for conversions following the close of business on the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts ~~exist~~ exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date and any Fundamental Change Repurchase Date described in clause (2) above shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted and/or repurchased, as applicable, following such Regular Record Date. (i) The Person in whose name the shares of Common ~~Shares~~ 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 (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common ~~Shares~~ Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of ~~Common Shares~~ shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional ~~Common Shares~~ shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Samples: Indenture (Zendesk, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~13.02, Section ~~11.03(b) and~~ 13.03(b)and Section ~~11.07(a~~13.07(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 13.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 13.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~13.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~September~~ December 1, ~~2025~~ 2017 shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs on or after ~~September~~ December 1, ~~2025~~2017, the Company shall use the same Settlement Method for all conversions ~~with~~ occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions ~~with~~ that occur on different ~~Conversion Dates~~Trading Days. (iii) If, in respect of any Conversion Date (or ~~the period described in the third immediately succeeding set of parentheses~~for conversions occurring on or after December 1, 2017, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the close of business on the ~~second~~ Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions ~~for which the relevant Conversion Date occurs~~ occurring on or after ~~September~~ December 1, ~~2025~~2017, no later than ~~September~~ December 1, ~~2025~~2017). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. By notice to Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 1, 2025, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through a Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 for all Conversion Dates occurring subsequent to delivery of such notice. Not later than three Business Days after providing notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee) of an irrevocable election with respect to the Settlement Method as described in the immediately preceding sentence, the Company shall issue a Current Report on Form 8-K or press release or otherwise provide public disclosure in a manner compliant with Regulation FD announcing that the Company has made such irrevocable election. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its option. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common ~~Share~~Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~13.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~11.02(h~~13.02(h) and, if required, pay all transfer and similar taxes, if any as provided in Sections 13.02(d) or (e), and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile 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 shares of Common ~~Shares~~ 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 ~~11.02(h~~13.02(h). The Trustee (~~and~~ and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 XIII on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such ~~Holder~~ Xxxxxx has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and ~~has~~ not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~12.03~~14.02. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered~~, subject, in the case of Global Notes, to the rules of the applicable Depositary~~. (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 11.03(b) and Section 11.07(a), the~~ The Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the ~~second~~ third Business Day immediately following the relevant Conversion Date, if the Company elects Physical ~~Settlement~~Settlement (provided that, with respect to any Conversion Date occurring on or after December 1, 2017, settlement will occur on the Maturity Date) or on the ~~second~~ third Business Day immediately following the last Trading Day of the relevant Observation Period, in the case of any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver ~~(if applicable)~~ to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be ~~entitled, in certificate form or in book-entry format,~~ entitled in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company (1) in the case of a Global Note, shall cause the principal balance of a Global Note to be adjusted in accordance with the procedures of the Depositary in effect at that time or (2) in the case of a Physical Note, shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder ~~but, if required by the Company or Trustee,~~ but with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common ~~Shares~~ Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common ~~Shares~~ Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section ~~11.04~~13.04, no adjustment shall be made for dividends on any ~~Common Shares~~ shares issued upon the conversion of any Note as provided in this Article 11XIII. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below~~, and the Company shall not adjust the Conversion Rate to adjust 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 ~~excluding~~not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~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 ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts ~~exist~~ exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the certificate for any shares of Common ~~Shares shall be issuable~~ Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common ~~Shares~~ Stock issuable upon conversion based on the Daily VWAP ~~for~~ on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP ~~for~~ on the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of ~~Common Shares~~ shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation ~~Period~~ Period, and any fractional ~~Common Shares~~ shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Samples: Indenture (Infinera Corp)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~14.02, Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~14.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~September~~ July 1, ~~2025~~ 2020 shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs on or after ~~September~~ July 1, ~~2025~~2020, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion Date (or the period described in the third immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the ~~Company, through the Trustee,~~ Company shall deliver such Settlement Notice in writing to converting ~~Holders~~ Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the ~~second~~ Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs on or after ~~September~~ July 1, ~~2025~~2020, no later than ~~September~~ July 1, ~~2025~~2020). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not ~~indicate a~~ timely notify converting Holders of the Specified Dollar Amount per $1,000 principal amount of ~~Notes in such Settlement Notice~~Notes, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. By notice to Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 1, 2025, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through a Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 for all Conversion Dates occurring subsequent to delivery of such notice. Not later than three Business Days after providing notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee) of an irrevocable election with respect to the Settlement Method as described in the immediately preceding sentence, the Company shall issue a Current Report on Form 8-K or press release or otherwise provide public disclosure in a manner compliant with Regulation FD announcing that the Company has made such irrevocable election. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its option. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 40 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 40 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common ~~Share~~Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~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 ~~11.02(h~~14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile 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 shares of Common ~~Shares~~ 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 ~~11.02(h~~14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such ~~Holder~~ Xxxxxx has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~12.03~~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~~, subject, in the case of Global Notes, to the rules of the applicable Depositary~~. (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 ~~11.03(b~~14.03(b) Section 14.07(a) and Section ~~11.07(a~~14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the ~~second~~ third Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the ~~second~~ third Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be entitled, in certificate form or in book-entry format, in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company (1) in the case of a Global Note, shall cause the principal balance of a Global Note to be adjusted in accordance with the procedures of the Depositary in effect at that time or (2) in the case of a Physical Note, shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common ~~Shares~~ Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver or refuse to instruct the stock transfer agent to deliver the certificates representing the shares of Common ~~Shares~~ Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such ~~Holder~~ Xxxxxx in accordance with the immediately preceding sentence. (f) Except as provided in Section ~~11.04~~14.04, no adjustment shall be made for dividends on any shares of Common ~~Shares~~ Stock issued upon the conversion of any Note as provided in this Article 1114. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below~~, and the Company shall not adjust the Conversion Rate to adjust 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 ~~excluding~~not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~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 ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts ~~exist~~ exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record at the close of business on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the shares of Common ~~Shares~~ 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 (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common ~~Shares~~ Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of ~~Common Shares~~ shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional ~~Common Shares~~ shares remaining after such computation shall be paid in cash. (k) Neither the Trustee nor the Conversion Agent (if other than the Trustee) shall have any duty to determine whether any of the conditions to conversion set forth in Section 14.01 have been satisfied.

Appears in 1 contract

Samples: Indenture (Vitamin Shoppe, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~14.02, Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~14.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~September~~ February 1, ~~2025~~ 2022 shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs on or after ~~September~~ February 1, ~~2025~~2022, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion Date (or the period described in the third immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the ~~Trustee~~Conversion Agent, shall deliver such Settlement Notice to converting Holders no later than the close of business on the ~~second~~ Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs on or after ~~September~~ February 1, ~~2025~~2022, no later than ~~September~~ February 1, ~~2025~~2022). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. By notice to Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 1, 2025, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through a Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 for all Conversion Dates occurring subsequent to delivery of such notice. Not later than three Business Days after providing notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee) of an irrevocable election with respect to the Settlement Method as described in the immediately preceding sentence, the Company shall issue a Current Report on Form 8-K or press release or otherwise provide public disclosure in a manner compliant with Regulation FD announcing that the Company has made such irrevocable election. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its option. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 35 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 35 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common ~~Share~~Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~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 to the Company funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~11.02(h~~14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an a medallion-stamped guaranteed irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion ~~(or a facsimile thereof)~~ (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common ~~Shares~~ 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 to the Company funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~11.02(h~~14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such ~~Holder~~ Xxxxxx has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~12.03~~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~~, subject, in the case of Global Notes, to the rules of the applicable Depositary~~. (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 ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the ~~second~~ third Business Day immediately following the relevant Conversion Date, if the Company elects Physical ~~Settlement~~Settlement (provided that, with respect to any Conversion Date occurring after the Regular Record Date immediately preceding the Maturity Date, the Company shall settle the related conversion on the Maturity Date), or on the ~~second~~ third Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to a converting ~~Holders~~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 shares of Common ~~Shares~~ Stock to which such Holder shall be entitled, in ~~certificate form or in~~ book-entry ~~format~~format through the Depositary, in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company (1) in the case of a Global Note, shall cause the principal balance of a Global Note to be adjusted in accordance with the procedures of the Depositary in effect at that time or (2) in the case of a Physical Note, shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common ~~Shares~~ Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The ~~Conversion Agent~~ Company may refuse to deliver the certificates (or book-entry evidence) representing the shares of Common ~~Shares~~ Stock being issued in a name other than the Holder’s name until the ~~Trustee~~ Company receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section ~~11.04~~14.04, no adjustment shall be made for dividends on any shares of Common ~~Shares~~ Stock issued upon the conversion of any Note as provided in this Article 1114. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below~~, and the Company shall not adjust the Conversion Rate to adjust 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 ~~excluding~~not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~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 ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts ~~exist~~ exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record as of the close of business on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the shares of Common ~~Shares~~ 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 (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common ~~Shares~~ Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of ~~Common Shares~~ shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional ~~Common Shares~~ shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Samples: Indenture (LendingTree, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this ~~Section 11.02~~‎Section 14.02, ~~Section 11.03(b~~‎Section 14.03(b) and ~~Section 11.07(a~~‎Section 14.07(a), upon conversion of any Note, the Company shall ~~pay~~ satisfy its Conversion Obligation by paying or ~~deliver~~delivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j‎(j) of this ~~Section 11.02~~ ‎Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j‎(j) of this ~~Section 11.02~~ ‎Section 14.02 (“Combination Settlement”), at its election, as set forth in this ~~Section 11.02~~‎Section 14.02. (i) All conversions for which the relevant Conversion Date occurs (x) on or after ~~September 1~~March 15, ~~2025~~ 2026 or (y) during a Redemption Period shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs during a Redemption Period and any conversions for which the relevant Conversion Date occurs on or after ~~September 1~~March 15, ~~2025~~2026, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion Date (or ~~the period described in the third immediately succeeding set of parentheses~~any conversions occurring (x) during a Redemption Period or (y) on or after March 15, 2026, as the case may be), the Company elects to a Settlement Method, the Company shall deliver a written notice (the “Settlement Notice”) of the ~~relevant~~ Settlement Method so elected in respect of such Conversion Date (or such period, as the case may be)) to converting Holders, the ~~Company, through~~ Trustee and the Conversion Agent (if other than the Trustee~~, shall deliver such Settlement Notice to converting Holders~~ ) no later than the close of business on the ~~second~~ Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions ~~for which the relevant Conversion Date occurs~~ occurring (x) during a Redemption Period, in such Redemption Notice, or (y) on or after ~~September 1~~March 15, ~~2025~~2026, no later than ~~September 1~~the close of business on the Business Day immediately preceding March 15, ~~2025~~2026). If the Company does not timely elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement for such Conversion Date or during such period and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company timely delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. By notice to Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 1, 2025, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through a Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 for all Conversion Dates occurring subsequent to delivery of such notice. Not later than three Business Days after providing notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee) of an irrevocable election with respect to the Settlement Method as described in the immediately preceding sentence, the Company shall issue a Current Report on Form 8-K or press release or otherwise provide public disclosure in a manner compliant with Regulation FD announcing that the Company has made such irrevocable election. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its option. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting ~~Holder~~ Holder, in respect of each $1,000 principal amount of Notes being ~~converted~~ converted, a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting ~~Holder~~ Holder, in respect of each $1,000 principal amount of Notes being ~~converted~~ converted, cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common ~~Share~~Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to ~~Section 11.02(e~~‎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 for converting a beneficial interest in a Global Note and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in ~~Section 11.02(h~~‎Section 14.02(h) (and, if required, pay all transfer or similar taxes, if any, as set forth in ‎Section 14.02(d) and ‎Section 14.02(e)) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a ~~facsimile~~ 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 shares of Common ~~Shares~~ 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 11.02(h~~‎Section 14.02(h); and (5) if required, pay all transfer or similar taxes, if any, as set forth in ‎Section 14.02(d) and ‎Section 14.02(e). The Trustee (~~and~~ and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this ~~Article 11~~ ‎Article 14 on the Conversion Date for such conversion. No ~~Notice of Conversion with respect to any~~ Notes may be surrendered for conversion by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with ~~Section 12.03~~‎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~~, subject, in the case of Global Notes, to the rules of the applicable Depositary~~. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b‎(b) above. Except as set forth in ~~Section 11.03(b~~‎‎Section 14.03(b) and ~~Section 11.07(a~~‎Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the second Business Day immediately following the last Trading Day of the relevant Observation Period, in the case of any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver ~~(if applicable) to the Conversion Agent or~~ to such Holder, or such Holder’s nominee or nominees, certificates (if the Notes to be converted are Restricted Securities) or a book-entry transfer through the Depositary (if the Notes to be converted are not Restricted Securities) for the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be ~~entitled, in certificate form or in book-entry format,~~ entitled in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company (1) in the case of a Global Note, shall cause the principal balance of a Global Note to be adjusted in accordance with the procedures of the Depositary in effect at that time or (2) in the case of a Physical Note, shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on ~~the issue~~ any issuance of any shares of Common ~~Shares~~ Stock upon conversion, unless the tax is due because the Holder requests any such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common ~~Shares~~ Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in ~~Section 11.04~~‎Section 14.04, no adjustment shall be made for dividends on any shares of Common ~~Shares~~ Stock issued upon the conversion of any Note as provided in this Article 1114. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below, and the ~~Company~~ Conversion Rate shall not ~~adjust the Conversion Rate to adjust~~ be adjusted for any accrued and unpaid interest on ~~the~~ any converted Notes. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but ~~excluding~~not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~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 ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the close of business on the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately 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 (34) to the extent of any Defaulted Amounts, if any Defaulted Amounts exist at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name ~~the~~ any shares of Common ~~Shares shall be issuable~~ Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common ~~Shares~~ Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of ~~Common Shares~~ shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional ~~Common Shares~~ shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Samples: Indenture (Heska Corp)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~14.02, Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~14.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~September~~ August 1, ~~2025~~ 2022 shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs on or after ~~September~~ August 1, ~~2025~~2022, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion Date prior to August 1, 2022 (or ~~the period described in the third immediately succeeding set of parentheses~~all conversions on and after August 1, ~~as the case may be~~2022), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the close of business on the ~~second~~ Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs on or after ~~September~~ August 1, ~~2025~~2022, no later than ~~September~~ August 1, ~~2025)~~2022. If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. By notice to Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 1, 2025, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through a Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 for all Conversion Dates occurring subsequent to delivery of such notice. Not later than three Business Days after providing notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee) of an irrevocable election with respect to the Settlement Method as described in the immediately preceding sentence, the Company shall issue a Current Report on Form 8-K or press release or otherwise provide public disclosure in a manner compliant with Regulation FD announcing that the Company has made such irrevocable election. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its option. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 40 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 40 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common ~~Share~~Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~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 ~~11.02(h~~14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile 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 shares of Common ~~Shares~~ 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 ~~11.02(h~~14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~12.03~~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~~, subject, in the case of Global Notes, to the rules of the applicable Depositary~~. (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 ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to a converting ~~Holders~~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 shares of Common ~~Shares~~ Stock to which such Holder shall be entitled, in ~~certificate form or in~~ book-entry ~~format~~format through the Depositary, in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company (1) in the case of a Global Note, shall cause the principal balance of a Global Note to be adjusted in accordance with the procedures of the Depositary in effect at that time or (2) in the case of a Physical Note, shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common ~~Shares~~ Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common ~~Shares~~ Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section ~~11.04~~14.04, no adjustment shall be made for dividends on any shares of Common ~~Shares~~ Stock issued upon the conversion of any Note as provided in this Article 1114. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below~~, and the Company shall not adjust the Conversion Rate to adjust 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 ~~excluding~~not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~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 ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts ~~exist~~ exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the shares of Common ~~Shares~~ 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 (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common ~~Shares~~ Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of ~~Common Shares~~ shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional ~~Common Shares~~ shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Samples: Indenture (Patrick Industries Inc)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~13.02, Section ~~11.03(b~~13.03(b) and Section ~~11.07(a~~13.07(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of ~~delivering~~ any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 13.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of ~~delivering~~ any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 13.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~13.02. (i) All conversions ~~for which the relevant Conversion Date occurs~~ occurring on or after ~~September 1~~July 15, ~~2025~~ 2018 shall be settled using the same Settlement Method. (ii) ~~Except for any conversions for which the relevant Conversion Date occurs on or after September 1~~Prior to July 15, ~~2025~~2018, the Company shall use the same Settlement Method for all conversions ~~with~~ occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions ~~with~~ that occur on different Conversion Dates. (iii) If, in respect of any Conversion Date (or any conversions of Notes occurring during the period ~~described in~~ beginning on, and including, July 15, 2018 and ending on, and including, the ~~third~~ Scheduled Trading Day immediately ~~succeeding set of parentheses~~preceding the Maturity Date, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the close of business on the ~~second~~ Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions ~~for which the relevant Conversion Date occurs~~ occurring on or after ~~September 1~~July 15, ~~2025~~2018, no later than ~~September 1~~July 15, ~~2025~~2018). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar ~~Amount per $1,000 principal amount of Notes~~Amount. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount ~~per $1,000 principal amount of Notes~~ in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. By notice to Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 1, 2025, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through a Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 for all Conversion Dates occurring subsequent to delivery of such notice. Not later than three Business Days after providing notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee) of an irrevocable election with respect to the Settlement Method as described in the immediately preceding sentence, the Company shall issue a Current Report on Form 8-K or press release or otherwise provide public disclosure in a manner compliant with Regulation FD announcing that the Company has made such irrevocable election. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its option. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed by the Company as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted ~~cash in~~ an amount in cash equal to the sum of the Daily Conversion Values for each of the 50 15 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 15 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of ~~delivering~~ any fractional ~~Common Share~~share, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of ~~delivering~~ fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~13.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~11.02(h~~13.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common ~~Shares~~ 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 ~~11.02(h~~13.02(h). The Trustee (~~and~~ and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 13 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such ~~Holder~~ Xxxxxx has also delivered a Fundamental Change Repurchase Notice to the ~~Company~~ Paying Agent in respect of such Notes and ~~has~~ not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~12.03~~14.02. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered~~, subject, in the case of Global Notes, to the rules of the applicable Depositary~~. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as ~~set forth~~ provided in Section ~~11.03(b~~13.03(b) and in Section ~~11.07(a)~~13.07, the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the ~~second~~ third Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the ~~second~~ third Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver ~~(if applicable) to the Conversion Agent or~~ to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be ~~entitled, in certificate form or in book-entry format,~~ entitled in satisfaction of the portion of the Company’s Conversion ~~Obligation~~Obligation that consists of shares of Common Stock, and, on or prior to such issuance, the Company shall give the Conversion Agent notice of the number of shares of Common Stock being so issued and the method by which the issuance shall take place. Any required funds due to a converting Holder in connection with a Cash Settlement or Combination Settlement shall be delivered to the Paying Agent and such Holder, or such Holder’s nominee or nominees, in accordance with the procedures set forth in Section 14.03. (d) In case any Note shall be surrendered for partial conversion, the Company (1) in the case of a Global Note, shall cause the principal balance of a Global Note to be adjusted in accordance with the procedures of the Depositary in effect at that time or (2) in the case of a Physical Note, 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 or similar issue or transfer tax due on the issue of any shares of Common ~~Shares~~ Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common ~~Shares~~ Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section ~~11.04~~13.04, no adjustment shall be made for dividends on any ~~Common Shares~~ shares issued upon the conversion of any Note as provided in this Article 1114. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below~~, and the Company shall not adjust the Conversion Rate to adjust 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 ~~excluding~~not including, the ~~relevant~~ Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~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 ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts exist at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the certificate for any shares of Common ~~Shares shall be issuable~~ Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Combination Settlement), as the case may be, in each case solely for the purpose of receiving or participating in any dividend, distribution, issuance, share split or combination, tender or exchange offer or any other event that would lead to a Conversion Rate adjustment as described in Section 13.04. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of ~~delivering~~ any fractional share of Common ~~Shares~~ Stock issuable upon conversion based on the Daily VWAP ~~for~~ on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP ~~for~~ on the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of ~~Common Shares~~ shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the ~~relevant~~ applicable Observation Period and any fractional ~~Common Shares~~ shares remaining after such computation shall be paid in cash. (k) Notwithstanding anything to the contrary herein, no Holder shall be entitled to receive shares of Common Stock upon conversion to the extent (but only to the extent) that such receipt would cause such converting Holder to become, directly or indirectly, a “beneficial owner” (within the meaning of Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) of more than 5.0% of the shares of Common Stock outstanding at such time (the “Limitation”). Any purported delivery of shares of Common Stock upon conversion of Notes shall be void and have no effect to the extent (but only to the extent) that such delivery would result in the converting Holder becoming the beneficial owner of more than the Limitation. If any delivery of shares of Common Stock owed to a Holder upon conversion of Notes is not made, in whole or in part, as a result of the Limitation, the Company’s obligation to make such delivery shall not be extinguished and the Company shall deliver such shares as promptly as practicable after any such converting Holder gives notice to the Company that such delivery would not result in it being the beneficial owner of more than 5.0% of the shares of Common Stock outstanding at such time. The Limitation shall no longer apply following the effective date of any Fundamental Change.

Appears in 1 contract

Samples: Indenture (Ares Capital Corp)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 11.02, Section 11.03(b) and Section 11.07(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section 11.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section 11.02 (“Combination Settlement”), at its election, as set forth in this Section 11.02.. 50 (i) All conversions for which the relevant Conversion Date occurs on or after ~~September 1~~February 15, ~~2025~~ 2024, and all conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date, shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes but prior to the related Redemption Date, and any conversions for which the relevant Conversion Date occurs during the period from, and including, February 15, 2024 to the close of business on ~~or after September 1, 2025~~the Scheduled Trading Day immediately preceding the Maturity Date, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion Date (or one of the ~~period~~ periods described in the third immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the close of business on the ~~second~~ Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs (x) after the date of issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date, in such Redemption Notice or (y) during the period from, and including, February 15, 2024 to the close of business on ~~or after September 1, 2025~~the Scheduled Trading Day immediately preceding the Maturity Date, no later than ~~September 1~~the close of business on the Business Day immediately preceding February 15, ~~2025~~2024). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement during such period and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company timely delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. By notice to Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 1, 2025, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through a Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 for all Conversion Dates occurring subsequent to delivery of such notice. Not later than three Business Days after providing notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee) of an irrevocable election with respect to the Settlement Method as described in the immediately preceding sentence, the Company shall issue a Current Report on Form 8-K or press release or otherwise provide public disclosure in a manner compliant with Regulation FD announcing that the Company has made such irrevocable election. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its option. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 40 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 40 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common ~~Share~~Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section 11.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 11.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common ~~Shares~~ 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 11.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 12.03. 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, subject, in the case of Global Notes, to the rules of the applicable Depositary. (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 11.03(b) and Section 11.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any Common Shares are due to converting Holders, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of Common Shares to which such Holder shall be entitled, in certificate form or in book-entry format, in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company (1) in the case of a Global Note, shall cause the principal balance of a Global Note to be adjusted in accordance with the procedures of the Depositary in effect at that time or (2) in the case of a Physical Note, shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any Common Shares upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the 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 immediately preceding sentence. (f) Except as provided in Section 11.04, no adjustment shall be made for dividends on any Common Shares issued upon the conversion of any Note as provided in this Article 11. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below, and the Company shall not adjust the Conversion Rate to adjust 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 excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and Common Shares, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable, on such Interest Payment Date, on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts exist at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name 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 (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects (or is deemed to have elected) to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional Common Shares upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Common Shares issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of Common Shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional Common Shares remaining after such computation shall be paid in cash.52

Appears in 1 contract

Samples: Third Supplemental Indenture (Assertio Therapeutics, Inc)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~13.02, Section ~~11.03(b~~13.03(c) and Section ~~11.07(a~~13.07(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 13.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 13.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~13.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~September 1~~February 15, ~~2025~~ 2023, shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs on or after ~~September 1~~February 15, ~~2025~~2023, the Company shall use the same Settlement Method for all conversions ~~with~~ occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion Date (or the period described in the third immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the close of business on the ~~second~~ Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs on or after ~~September 1~~February 15, ~~2025~~2023, no later than ~~September 1~~the close of business on Scheduled Trading Day immediately preceding February 15, ~~2025~~2023). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to such conversion or during such period and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. By notice to Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 1, 2025, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through a Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 for all Conversion Dates occurring subsequent to delivery of such notice. Not later than three Business Days after providing notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee) of an irrevocable election with respect to the Settlement Method as described in the immediately preceding sentence, the Company shall issue a Current Report on Form 8-K or press release or otherwise provide public disclosure in a manner compliant with Regulation FD announcing that the Company has made such irrevocable election. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its option. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 30 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 30 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common ~~Share~~Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (vi) At any time prior to February 15, 2023, the Company may irrevocably elect Cash Settlement to satisfy its Conversion Obligation in respect of Notes to be converted after the date of such election, or irrevocably elect Combination Settlement and a Specified Dollar Amount (which amount shall be at least $1,000 per $1,000 principal amount of Notes) to satisfy its Conversion Obligation in respect of Notes to be converted after the date of such election. Upon making any election pursuant to this Section 13.02(a)(vi), the Company shall promptly (A) use its reasonable efforts to post information relating to such election on its website or otherwise publicly disclose such information, and (B) give written notice of such election to the Holders of the Notes. (b) Subject to Section ~~11.02(e~~13.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~11.02(h~~13.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common ~~Shares~~ 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 ~~11.02(h~~13.02(h). The Trustee (~~and~~ and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 13 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~12.03~~14.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered~~, subject, in the case of Global Notes, to the rules of the applicable Depositary~~. (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 11.03(b) and Section 11.07(a), the~~ The Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical ~~Settlement~~Settlement for any conversion occurring prior to the Regular Record Date immediately preceding the Maturity Date; on the Maturity Date, for any conversion occurring on or after the Regular Record Date immediately preceding the Maturity Date; or on the second Business Day immediately following the last Trading Day of the relevant Observation Period, in the case of ~~any other~~ Cash Settlement ~~Method~~or Combination Settlement. If any shares of Common ~~Shares~~ Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver ~~(if applicable)~~ to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be ~~entitled, in certificate form or in book-entry format,~~ entitled in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company (1) in the case of a Global Note, shall cause the principal balance of a Global Note to be adjusted in accordance with the procedures of the Depositary in effect at that time or (2) in the case of a Physical Note, shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, ~~stamp~~ stamp, or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, ~~stamp~~ stamp, or similar issue or transfer tax due on the issue of any shares of Common ~~Shares~~ Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall be required to pay that tax. The Conversion Agent may refuse to deliver or refuse to instruct the stock transfer agent to deliver the certificates representing the shares of Common ~~Shares~~ Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section ~~11.04~~13.04, no adjustment shall be made for dividends on any shares of Common ~~Shares~~ Stock issued upon the conversion of any Note as provided in this Article 1113. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below~~, and the Company shall not adjust the Conversion Rate to adjust 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 excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date shall be deemed to be paid in full rather than ~~cancelled~~canceled, ~~extinguished~~ extinguished, or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts ~~exist~~ exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record at the close of business on the Regular Record Date immediately preceding the Maturity Date or any Fundamental Change Repurchase Date as described in the immediately preceding sentence shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date regardless of whether their Notes have been converted following such Regular Record Date. (i) ~~The~~ Subject to Section 13.12, the Person in whose name the certificate for any shares of Common ~~Shares shall be issuable~~ Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common ~~Shares~~ Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of ~~Common Shares~~ shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional ~~Common Shares~~ shares remaining after such computation shall be paid in cash. (k) Any applicable withholding taxes (including backup withholding) may be withheld from interest and payments upon conversion, repurchase or maturity of the Notes, or if any withholding taxes (including backup withholding) are paid on behalf of a Holder, those withholding taxes may be set off against payments of cash or Common Stock, if any, payable on the Notes to such Holder.

Appears in 1 contract

Samples: Indenture (Square, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~14.02, Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~14.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~September~~ August 1, ~~2025~~ 2021 shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs on or after ~~September~~ August 1, ~~2025~~2021, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion Date (or the period described in the ~~third~~ fourth immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the ~~Company, through the Trustee,~~ Company shall deliver such Settlement Notice to converting ~~Holders~~ Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the ~~second~~ Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs on or after ~~September~~ August 1, ~~2025~~2021, no later than ~~September~~ August 1, ~~2025~~2021). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. By notice to Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 1, 2025, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through a Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 for all Conversion Dates occurring subsequent to delivery of such notice. Not later than three Business Days after providing notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee) of an irrevocable election with respect to the Settlement Method as described in the immediately preceding sentence, the Company shall issue a Current Report on Form 8-K or press release or otherwise provide public disclosure in a manner compliant with Regulation FD announcing that the Company has made such irrevocable election. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its option. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 20 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 20 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common ~~Share~~Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~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 ~~11.02(h~~14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile 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 shares of Common ~~Shares~~ 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 ~~11.02(h~~14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~12.03~~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~~, subject, in the case of Global Notes, to the rules of the applicable Depositary~~. (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 ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the ~~second~~ third Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the ~~second~~ third Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to a converting ~~Holders~~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 shares of Common ~~Shares~~ Stock to which such Holder shall be entitled, in certificate form or in book-entry format, in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company (1) in the case of a Global Note, shall cause the principal balance of a Global Note to be adjusted in accordance with the procedures of the Depositary in effect at that time or (2) in the case of a Physical Note, shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common ~~Shares~~ Stock upon conversion, unless the tax is due because the Holder requests any such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The ~~Conversion Agent~~ Company may refuse to deliver the certificates representing the shares of Common ~~Shares~~ Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section ~~11.04~~14.04, no adjustment shall be made for dividends on any shares of Common ~~Shares~~ Stock issued upon the conversion of any Note as provided in this Article 1114. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below~~, and the Company shall not adjust the Conversion Rate to adjust 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 ~~excluding~~not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~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 ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts ~~exist~~ exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the shares of Common ~~Shares~~ 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 (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common ~~Shares~~ Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of ~~Common Shares~~ shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional ~~Common Shares~~ shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Samples: Indenture (Knowles Corp)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~14.02, Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of ~~delivering~~ any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“~~Physical~~ Stock Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of ~~delivering~~ any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~14.02. (i) All conversions ~~for which the relevant~~ occurring on a given Conversion Date that occurs ~~on or after September~~ prior to November 1, ~~2025~~ 2019 shall be settled using the same Settlement Method. (ii) Except for any conversions ~~for which the relevant Conversion Date occurs~~ occurring on or after ~~September~~ November 1, ~~2025~~2019, ~~the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but~~ the Company shall not have any obligation to use the same Settlement Method with respect to conversions ~~with~~ that occur on different Conversion Dates. (iii) If, in respect of any Conversion Date ~~(or the period described in the third immediately succeeding set of parentheses~~occurring prior to November 1, ~~as the case may be)~~2019, the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion ~~Date (or such period, as the case may be)~~Date, the Company, through the ~~Trustee~~Conversion Agent, shall deliver such Settlement Notice to converting Holders no later than the close of business on the second Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions ~~for which the relevant Conversion Date occurs~~ occurring on or after ~~September~~ November 1, ~~2025~~2019, no later than ~~September~~ November 1, ~~2025~~2019). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or ~~Physical~~ Stock Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar ~~Amount per $1,000 principal amount of Notes~~Amount. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount ~~per $1,000 principal amount of Notes~~ in such Settlement Notice, the Specified Dollar Amount ~~per $1,000 principal amount of Notes~~ shall be deemed to be $1,000~~. By notice to Holders of the Notes, the Trustee and the Conversion Agent~~ . (~~if other than the Trustee), the~~ iv) The Company may, prior to ~~September~~ November 1, ~~2025~~2019, at its option, irrevocably elect ~~to satisfy its Conversion Obligation with respect to the Notes through~~ a Combination Settlement with a particular Specified Dollar Amount ~~per $1,000 principal amount of Notes of $1,000~~ for all ~~Conversion Dates occurring~~ conversions subsequent to ~~delivery~~ its notice by notice of such ~~notice. Not later than three Business Days after providing notice~~ election to ~~Holders, the Trustee and the Conversion Agent (if other than the Trustee)~~ all Holders of an irrevocable election with respect to the Settlement Method as described in the immediately preceding sentence, the Company shall issue a Current Report on Form 8-K or press release or otherwise provide public disclosure in a manner compliant with Regulation FD announcing that the Company has made such irrevocable election. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Second Supplemental Indenture or the Notes~~, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its option~~. (ivv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by ~~Physical~~ Stock Settlement, the Company shall deliver to the converting Holder ~~in respect~~ a number of ~~each $1,000~~ shares of Common Stock equal to the product of (1) the aggregate principal amount of Notes ~~being converted a number of Common Shares equal~~ to be converted, divided by $1,000, and (2) the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 30 consecutive Trading Days during the related ~~Observation~~ Conversion Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 30 consecutive Trading Days during the related ~~Observation~~ Conversion Period. (vvi) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the ~~Observation~~ Conversion Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of ~~delivering~~ any fractional ~~Common Share~~share, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of ~~delivering~~ fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~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 ~~11.02(h~~14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile 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 shares of Common ~~Shares~~ 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 ~~11.02(h~~14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such ~~Holder has~~ Hoxxxx xas also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and ~~has~~ not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~12.03~~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~~, subject, in the case of Global Notes, to the rules of the applicable Depositary~~. (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 11.03(b) and Section 11.07(a), the~~ The Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation (i) if the Company elects Stock Settlement, on the ~~second~~ third Business Day immediately following the relevant Conversion Date, if unless such Conversion Date occurs following the Regular Record Date immediately preceding the Maturity Date, in which case the Company ~~elects Physical Settlement, or~~ will deliver the relevant consideration on the ~~second~~ Maturity Date or (ii) on the third Business Day immediately following the last Trading Day of the ~~Observation~~ Conversion Period, in the case of any other Settlement Method, provided that if prior to a relevant Conversion Date the Company’s Common Stock has been replaced by Reference Property consisting solely of cash, the Company will pay the consideration due in respect of such Conversion Date on the tenth Business Day immediately following such Conversion Date, and notwithstanding the foregoing, no Conversion Period will apply to such conversions. If any shares of Common ~~Shares~~ Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver ~~(if applicable)~~ to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be ~~entitled, in certificate form or in book-entry format,~~ entitled in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company (1) in the case of a Global Note, shall cause the principal balance of a Global Note to be adjusted in accordance with the procedures of the Depositary in effect at that time or (2) in the case of a Physical Note, shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common ~~Shares~~ Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s ~~name~~name or delivered to a person other than the Holder, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common ~~Shares~~ Stock being issued in a name other than the Holder’s name or delivered to a person other than the Holder until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section ~~11.04~~14.04, no adjustment shall be made for dividends on any ~~Common Shares~~ shares issued upon the conversion of any Note as provided in this Article 1114. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below~~, and the Company shall not adjust the Conversion Rate to adjust 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 ~~excluding~~not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~not including, the relevant Conversion Date shall be deemed to be paid in full rather than ~~cancelled~~canceled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the ~~Business Day immediately following the~~ corresponding Interest Payment Date; or (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts ~~exist~~ exists at the time of conversion with respect to such Note. ~~Therefore~~As a result of the foregoing, ~~for~~ the ~~avoidance of doubt,~~ Company shall pay interest on the Maturity Date on all ~~Holders of record on~~ Notes converted after the Regular Record Date ~~immediately~~ preceding the Maturity ~~Date shall receive the full~~ Date, and converting Holders will not be required to pay equivalent interest amounts. No other payment ~~due~~ or adjustment will be made for accrued interest on ~~the Maturity Date regardless of whether their Notes have been~~ a converted ~~following such Regular Record Date~~Note, other than as set forth in this Indenture. (i) The Person in whose name the certificate for any shares of Common ~~Shares shall be issuable~~ Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by ~~Physical~~ Stock Settlement) or the last Trading Day of the relevant ~~Observation~~ Conversion Period (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of ~~delivering~~ any fractional share of Common ~~Shares~~ Stock issuable upon conversion based on the Daily VWAP ~~for~~ on the relevant Conversion Date (in the case of ~~Physical~~ Stock Settlement) or based on the Daily VWAP ~~for~~ on the last Trading Day of the relevant ~~Observation~~ Conversion Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of ~~Common Shares~~ shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the ~~relevant Observation~~ applicable Conversion Period and any fractional ~~Common Shares~~ shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Samples: Indenture (Vivus Inc)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~14.02, Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~14.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~September 1~~August 15, 2025 shall be settled using the same Settlement Method. (ii) ~~Except for~~ For any conversions for which the relevant Conversion Date occurs ~~on or after September 1~~prior to August 15, 2025, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion Date (or the period described in the third immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the ~~Company, through the Trustee,~~ Company shall deliver such Settlement Notice to converting ~~Holders~~ Holders, through the Trustee, no later than the close of business on the second Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs on or after ~~September 1~~August 15, 2025, no later than ~~September 1~~August 15, 2025). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement for such conversion or during such period, and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. By notice to Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 1, 2025, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through a Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 for all Conversion Dates occurring subsequent to delivery of such notice. Not later than three Business Days after providing notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee) of an irrevocable election with respect to the Settlement Method as described in the immediately preceding sentence, the Company shall issue a Current Report on Form 8-K or press release or otherwise provide public disclosure in a manner compliant with Regulation FD announcing that the Company has made such irrevocable election. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its option. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 40 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 40 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common ~~Share~~Stock, the Company shall notify the Trustee and the Conversion Agent ~~(if other than the Trustee)~~ in writing of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent ~~(if other than the Trustee)~~ shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~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 ~~11.02(h~~14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile 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 shares of Common ~~Shares~~ 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 ~~11.02(h~~14.02(h) and (5) if required, pay all transfer or similar taxes, if any, as set forth in Section 14.02(e). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be delivered, and no Notes surrendered for conversion by a Holder ~~thereof~~ thereof, if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~12.03~~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~~, subject, in the case of Global Notes, to the rules of the applicable Depositary~~. (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 ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to a converting ~~Holders~~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 shares of Common ~~Shares~~ Stock to which such Holder shall be entitled, in ~~certificate form or in~~ book-entry ~~format~~format through the Depositary, in satisfaction of the Company’s Conversion Obligation. (d) In case any Physical Note shall be surrendered for partial conversion, the Company (1) in the case of a Global Note, shall cause the principal balance of a Global Note to be adjusted in accordance with the procedures of the Depositary in effect at that time or (2) in the case of a Physical Note, shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Physical Note so surrendered a new Physical Note or Physical Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Physical Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Physical Notes issued upon such conversion being different from the name of the Holder of the old Physical Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common ~~Shares~~ Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common ~~Shares~~ Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section ~~11.04~~14.04, no adjustment shall be made for dividends on any shares of Common ~~Shares~~ Stock issued upon the conversion of any Note as provided in this Article 1114. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below~~, and the Company shall not adjust the Conversion Rate to adjust 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 ~~excluding~~not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~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 ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record ~~Date~~Date but prior to the opening of business on the 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. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts ~~exist~~ exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record as of the close of business on the Regular Record Date immediately preceding the Maturity Date or Fundamental Change Repurchase Date shall receive the full interest payment due on the Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record ~~Date~~Date and the converting Holder shall not be required to make a corresponding payment. (i) The Person in whose name the shares of Common ~~Shares~~ 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 (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common ~~Shares~~ Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of ~~Common Shares~~ shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional ~~Common Shares~~ shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Samples: Indenture (Tabula Rasa HealthCare, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~13.02, Section ~~11.03(b~~13.03(b) and Section ~~11.07(a~~13.07(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of ~~delivering~~ any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 13.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of ~~delivering~~ any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 13.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~13.02. (i) All conversions ~~for which the relevant Conversion Date occurs~~ occurring on or after ~~September~~ August 1, ~~2025 shall~~ 2021shall be settled using the same Settlement Method. (ii) ~~Except for any conversions for which the relevant Conversion Date occurs on or after September~~ Prior to August 1, ~~2025~~2021, the Company shall use the same Settlement Method for all conversions ~~with~~ occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions ~~with~~ that occur on different Conversion Dates. (iii) If, in respect of any Conversion Date (or any conversions of Notes occurring during the period ~~described in~~ beginning on, but excluding, August 1, 2021 and ending on, and including, the ~~third~~ Business Day immediately ~~succeeding set of parentheses~~preceding the Maturity Date, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the close of business on the ~~second~~ Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions ~~for which the relevant Conversion Date occurs~~ occurring on or after ~~September~~ August 1, ~~2025~~2021, no later than ~~September~~ August 1, ~~2025~~2021). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar ~~Amount per $1,000 principal amount of Notes~~Amount. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount ~~per $1,000 principal amount of Notes~~ in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. By notice to Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 1, 2025, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through a Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 for all Conversion Dates occurring subsequent to delivery of such notice. Not later than three Business Days after providing notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee) of an irrevocable election with respect to the Settlement Method as described in the immediately preceding sentence, the Company shall issue a Current Report on Form 8-K or press release or otherwise provide public disclosure in a manner compliant with Regulation FD announcing that the Company has made such irrevocable election. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its option. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed by the Company as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted ~~cash in~~ an amount in cash equal to the sum of the Daily Conversion Values for each of the 50 15 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 15 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of ~~delivering~~ any fractional ~~Common Share~~share, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of ~~delivering~~ fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~13.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~11.02(h~~13.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common ~~Shares~~ 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 ~~11.02(h~~13.02(h). The Trustee (~~and~~ and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 13 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company (or Paying Agent) in respect of such Notes and ~~has~~ not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~12.03~~14.02. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered~~, subject, in the case of Global Notes, to the rules of the applicable Depositary~~. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as ~~set forth~~ provided in Section ~~11.03(b~~13.03(b) and in Section ~~11.07(a)~~13.07, the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the ~~second~~ third Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the ~~second~~ third Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver ~~(if applicable) to the Conversion Agent or~~ to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be ~~entitled, in certificate form or in book-entry format,~~ entitled in satisfaction of the portion of the Company’s Conversion ~~Obligation~~Obligation that consists of shares of Common Stock, and, on or prior to such issuance, the Company shall give the Conversion Agent notice of the number of shares of Common Stock being so issued and the method by which the issuance shall take place. Any required funds due to a converting Holder in connection with a Cash Settlement or Combination Settlement shall be delivered to the Paying Agent and such Holder, or such Holder’s nominee or nominees, in accordance with the same procedures that apply in connection with the payment of the Fundamental Change Repurchase Price as set forth in Section 14.03. (d) In case any Note shall be surrendered for partial conversion, the Company (1) in the case of a Global Note, shall cause the principal balance of a Global Note to be adjusted in accordance with the procedures of the Depositary in effect at that time or (2) in the case of a Physical Note, 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 or similar issue or transfer tax due on the issue of any shares of Common ~~Shares~~ Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common ~~Shares~~ Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section ~~11.04~~13.04, no adjustment shall be made for dividends on any ~~Common Shares~~ shares issued upon the conversion of any Note as provided in this Article 1114. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below~~, and the Company shall not adjust the Conversion Rate to adjust 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 ~~excluding~~not including, the ~~relevant~~ Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~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 ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts exist at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the certificate for any shares of Common ~~Shares shall be issuable~~ Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects (or is deemed to have elected) to satisfy the related Conversion Obligation by Combination Settlement), as the case may be, in each case solely for the purpose of receiving or participating in any dividend, distribution, issuance, share split or combination, tender or exchange offer or any other event that would lead to a Conversion Rate adjustment as described in Section 13.04. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of ~~delivering~~ any fractional share of Common ~~Shares~~ Stock issuable upon conversion based on the Daily VWAP ~~for~~ on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP ~~for~~ on the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of ~~Common Shares~~ shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the ~~relevant~~ applicable Observation Period and any fractional ~~Common Shares~~ shares remaining after such computation shall be paid in cash. (k) Notwithstanding anything to the contrary herein, no Holder shall be entitled to receive shares of Common Stock upon conversion to the extent (but only to the extent) that such receipt would cause such converting Holder to become, directly or indirectly, a “beneficial owner” (within the meaning of Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) of more than 5.0% of the shares of Common Stock outstanding at such time (the “Limitation”). Any purported delivery of shares of Common Stock upon conversion of Notes shall be void and have no effect to the extent (but only to the extent) that such delivery would result in the converting Holder becoming the beneficial owner of more than the Limitation. If any delivery of shares of Common Stock owed to a Holder upon conversion of Notes is not made, in whole or in part, as a result of the Limitation, the Company’s obligation to make such delivery shall not be extinguished and the Company shall deliver such shares as promptly as practicable after any such converting Holder gives notice to the Company that such delivery would not result in it being the beneficial owner of more than 5.0% of the shares of Common Stock outstanding at such time. The Limitation shall no longer apply following the effective date of any Fundamental Change.

Appears in 1 contract

Samples: Indenture (Hercules Capital, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~14.02, Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~14.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~September~~ July 1, ~~2025~~ 2026 shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs on or after ~~September~~ July 1, ~~2025~~2026, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion Date (or the period described in the third immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the close of business on the ~~second~~ Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs on or after ~~September~~ July 1, ~~2025~~2026, no later than ~~September~~ July 1, ~~2025~~2026). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. By notice to Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 1, 2025, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through a Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 for all Conversion Dates occurring subsequent to delivery of such notice. Not later than three Business Days after providing notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee) of an irrevocable election with respect to the Settlement Method as described in the immediately preceding sentence, the Company shall issue a Current Report on Form 8-K or press release or otherwise provide public disclosure in a manner compliant with Regulation FD announcing that the Company has made such irrevocable election. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its option. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common ~~Share~~Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~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 ~~11.02(h~~14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile 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 shares of Common ~~Shares~~ 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 ~~11.02(h~~14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~12.03~~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~~, subject, in the case of Global Notes, to the rules of the applicable Depositary~~. (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 ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to a converting ~~Holders~~Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to the ~~Conversion Agent or to such~~ converting Holder, or such Holder’s nominee or nominees, the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be entitled, in ~~certificate form or in~~ book-entry ~~format~~format through the Depositary, in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company (1) in the case of a Global Note, shall cause the principal balance of a Global Note to be adjusted in accordance with the procedures of the Depositary in effect at that time or (2) in the case of a Physical Note, shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common ~~Shares~~ Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common ~~Shares~~ Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section ~~11.04~~14.04, no adjustment shall be made for dividends on any shares of Common ~~Shares~~ Stock issued upon the conversion of any Note as provided in this Article 1114. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below~~, and the Company shall not adjust the Conversion Rate to adjust 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 ~~excluding~~not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~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 ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts ~~exist~~ exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the shares of Common ~~Shares~~ 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 (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common ~~Shares~~ Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of ~~Common Shares~~ shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional ~~Common Shares~~ shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Samples: Indenture (Allscripts Healthcare Solutions, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~13.02, Section ~~11.03(b~~13.03(b) and Section ~~11.07(a~~13.07(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of ~~delivering~~ any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 13.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of ~~delivering~~ any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 13.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~13.02. (i) All conversions ~~for which the relevant Conversion Date occurs~~ occurring on or after September 1, ~~2025~~ 2021 shall be settled using the same Settlement Method. (ii) ~~Except for any conversions for which the relevant Conversion Date occurs on or after~~ Prior to September 1, ~~2025~~2021, the Company shall use the same Settlement Method for all conversions ~~with~~ occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions ~~with~~ that occur on different Conversion Dates. (iii) If, in respect of any Conversion Date (or any conversions of Notes occurring during the period ~~described in~~ beginning on, and including, September 1, 2021 and ending on, and including, the ~~third~~ Scheduled Trading Day immediately ~~succeeding set of parentheses~~preceding the Maturity Date, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the close of business on the ~~second~~ Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions ~~for which the relevant Conversion Date occurs~~ occurring on or after September 1, ~~2025~~2021, no later than September 1, ~~2025~~2021). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar ~~Amount per $1,000 principal amount of Notes~~Amount. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount ~~per $1,000 principal amount of Notes~~ in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. By notice to Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 1, 2025, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through a Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 for all Conversion Dates occurring subsequent to delivery of such notice. Not later than three Business Days after providing notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee) of an irrevocable election with respect to the Settlement Method as described in the immediately preceding sentence, the Company shall issue a Current Report on Form 8-K or press release or otherwise provide public disclosure in a manner compliant with Regulation FD announcing that the Company has made such irrevocable election. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its option. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed by the Company as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted ~~cash in~~ an amount in cash equal to the sum of the Daily Conversion Values for each of the 50 15 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 15 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of ~~delivering~~ any fractional ~~Common Share~~share, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of ~~delivering~~ fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~13.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~11.02(h~~13.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common ~~Shares~~ 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 all taxes or duties, if any, and (5) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~11.02(h~~13.02(h). The Trustee (~~and~~ and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 13 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the ~~Company~~ Paying Agent in respect of such Notes and ~~has~~ not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~12.03~~14.02. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered~~, subject, in the case of Global Notes, to the rules of the applicable Depositary~~. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as ~~set forth~~ provided in Section ~~11.03(b~~13.03(b) and in Section ~~11.07(a)~~13.07, the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the ~~second~~ third Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the ~~second~~ third Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver ~~(if applicable) to the Conversion Agent or~~ to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be ~~entitled, in certificate form or in book-entry format,~~ entitled in satisfaction of the portion of the Company’s Conversion ~~Obligation~~Obligation that consists of shares of Common Stock, and, on or prior to such issuance, the Company shall give the Conversion Agent notice of the number of shares of Common Stock being so issued and the method by which the issuance shall take place. Any required funds due to a converting Holder in connection with a Cash Settlement or Combination Settlement shall be delivered to the Paying Agent in accordance with the procedures set forth in Section 14.03. (d) In case any Note shall be surrendered for partial conversion, the Company (1) in the case of a Global Note, shall cause the principal balance of a Global Note to be adjusted in accordance with the procedures of the Depositary in effect at that time or (2) in the case of a Physical Note, 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 or similar issue or transfer tax due on the issue of any shares of Common ~~Shares~~ Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common ~~Shares~~ Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section ~~11.04~~13.04, no adjustment shall be made for dividends on any ~~Common Shares~~ shares issued upon the conversion of any Note as provided in this Article 1114. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below~~, and the Company shall not adjust the Conversion Rate to adjust 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 ~~excluding~~not including, the ~~relevant~~ Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~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 ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts exist at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the certificate for any shares of Common ~~Shares shall be issuable~~ Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Combination Settlement), as the case may be, in each case solely for the purpose of receiving or participating in any dividend, distribution, issuance, share split or combination, tender or exchange offer or any other event that would lead to a Conversion Rate adjustment as described in Section 13.04. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of ~~delivering~~ any fractional share of Common ~~Shares~~ Stock issuable upon conversion based on the Daily VWAP ~~for~~ on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP ~~for~~ on the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of ~~Common Shares~~ shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the ~~relevant~~ applicable Observation Period and any fractional ~~Common Shares~~ shares remaining after such computation shall be paid in cash. (k) Notwithstanding anything to the contrary herein, no Holder shall be entitled to receive shares of Common Stock upon conversion to the extent (but only to the extent) that such receipt would cause such converting Holder to become, directly or indirectly, a “beneficial owner” (within the meaning of Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) of more than 5.0% of the shares of Common Stock outstanding at such time (the “Limitation”). Any purported delivery of shares of Common Stock upon conversion of Notes shall be void and have no effect to the extent (but only to the extent) that such delivery would result in the converting Holder becoming the beneficial owner of more than the Limitation. If any delivery of shares of Common Stock owed to a Holder upon conversion of Notes is not made, in whole or in part, as a result of the Limitation, the Company’s obligation to make such delivery shall not be extinguished and the Company shall deliver such shares as promptly as practicable after any such converting Holder gives notice to the Company that such delivery would not result in it being the beneficial owner of more than 5.0% of the shares of Common Stock outstanding at such time. The Limitation shall no longer apply following the effective date of any Fundamental Change.

Appears in 1 contract

Samples: Indenture (TCP Capital Corp.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~14.02, Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~14.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~September~~ July 1, ~~2025~~ 2026 shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs on or after ~~September~~ July 1, ~~2025~~2026, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion Date (or the period described in the third immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the ~~Trustee~~Conversion Agent, shall deliver such Settlement Notice to converting Holders no later than the close of business on the ~~second~~ Trading Day immediately following the ~~relevant~~ related Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs on or after ~~September~~ July 1, ~~2025~~2026, no later than ~~September~~ July 1, ~~2025~~2026). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to any conversion on such Conversion Date or during such period, and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. By notice to Holders ~~of the Notes,~~ (with a copy to the Trustee and ~~the~~ Conversion ~~Agent (if other than the Trustee~~Agent), the Company may, prior to ~~September~~ July 1, ~~2025~~2026, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through a Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 for all Conversion Dates occurring subsequent to delivery of such notice. Not later than three Business Days after providing notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee) of an irrevocable election with respect to the Settlement Method as described in the immediately preceding sentence, the Company shall issue a Current Report on Form 8-K or press release or otherwise provide public disclosure in a manner compliant with Regulation FD announcing that the Company has made such irrevocable election. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its option. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 40 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 40 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common ~~Share~~Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~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 ~~11.02(h~~14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent and the Trustee (if the Trustee is not the Conversion Agent) as set forth in the Form of Notice of Conversion (or a ~~facsimile~~ facsimile, PDF or other electronic transmission thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common ~~Shares~~ Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer ~~documents~~ documents, (4) if required, pay all transfer and similar taxes 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 ~~11.02(h~~14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~12.03~~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~~, subject, in the case of Global Notes, to the rules of the applicable Depositary~~. (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 ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on no later than the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to a converting ~~Holders~~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 shares of Common ~~Shares~~ Stock to which such Holder shall be entitled, in ~~certificate form or in~~ book-entry ~~format~~format through the Depositary, in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company (1) in the case of a Global Note, shall cause the principal balance of a Global Note to be adjusted in accordance with the procedures of the Depositary in effect at that time or (2) in the case of a Physical Note, shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common ~~Shares~~ Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The ~~Conversion Agent~~ Company may refuse to deliver the certificates representing the shares of Common ~~Shares~~ Stock being issued in a name other than the Holder’s name until the ~~Trustee~~ Company receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section ~~11.04~~14.04, no adjustment shall be made for dividends on any shares of Common ~~Shares~~ Stock issued upon the conversion of any Note as provided in this Article 1114. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below~~, and the Company shall not adjust the Conversion Rate to adjust 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 ~~excluding~~not including, the relevant Conversion Date. ~~As a result~~Accordingly, accrued and unpaid interest, if any, to, but ~~excluding~~not including, the relevant Conversion Date shall be deemed to be paid in full upon conversion rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date but prior to the open of business on the immediately following Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record ~~Date~~ Date, will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts ~~exist~~ exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the shares of Common ~~Shares~~ 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 (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common ~~Shares~~ Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of ~~Common Shares~~ shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional ~~Common Shares~~ shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Samples: Indenture (J2 Global, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~13.02, Section ~~11.03(b~~13.03(b) and Section ~~11.07(a~~13.07(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 13.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 13.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~13.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~September 1~~December 15, ~~2025~~ 2017 shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs on or after ~~September 1~~December 15, ~~2025~~2017, the Company shall use the same Settlement Method for all conversions ~~with~~ occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions ~~with~~ that occur on different ~~Conversion Dates~~Trading Days. (iii) If, in respect of any Conversion Date (or ~~the period described in the third immediately succeeding set of parentheses~~for conversions occurring on or after December 15, 2017, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the close of business on the ~~second~~ Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions ~~for which the relevant Conversion Date occurs~~ occurring on or after ~~September 1~~December 15, ~~2025~~2017, no later than ~~September 1~~December 15, ~~2025~~2017). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. By notice to Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 1, 2025, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through a Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 for all Conversion Dates occurring subsequent to delivery of such notice. Not later than three Business Days after providing notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee) of an irrevocable election with respect to the Settlement Method as described in the immediately preceding sentence, the Company shall issue a Current Report on Form 8-K or press release or otherwise provide public disclosure in a manner compliant with Regulation FD announcing that the Company has made such irrevocable election. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its option. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 30 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 30 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common ~~Share~~Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~13.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~11.02(h~~13.02(h) and, if required, pay all transfer and similar taxes, if any as provided in Sections 13.02(d) or (e), and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile 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 shares of Common ~~Shares~~ Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer ~~documents~~ documents, (4) if required, pay all transfer or similar taxes and (45) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~11.02(h~~13.02(h). The Trustee (~~and~~ and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 XIII on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such ~~Holder~~ Xxxxxx has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and ~~has~~ not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~12.03~~14.02. Nothing herein shall preclude any withholding of tax required by law. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered~~, subject, in the case of Global Notes, to the rules of the applicable Depositary~~. (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 11.03(b) and Section 11.07(a), the~~ The Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the ~~second~~ third Business Day immediately following the relevant Conversion Date, if the Company elects Physical ~~Settlement~~Settlement (provided that, with respect to any Conversion Date occurring on or after December 15, 2017, settlement will occur on the Maturity Date) or on the ~~second~~ third Business Day immediately following the last Trading Day of the relevant Observation Period, in the case of any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver ~~(if applicable)~~ to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be ~~entitled, in certificate form or in book-entry format,~~ entitled in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company (1) in the case of a Global Note, shall cause the principal balance of a Global Note to be adjusted in accordance with the procedures of the Depositary in effect at that time or (2) in the case of a Physical Note, shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder ~~but, if required by the Company or Trustee,~~ but with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common ~~Shares~~ Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common ~~Shares~~ Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section ~~11.04~~13.04, no adjustment shall be made for dividends on any ~~Common Shares~~ shares issued upon the conversion of any Note as provided in this Article 11XIII. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below~~, and the Company shall not adjust the Conversion Rate to adjust 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 ~~excluding~~not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~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 ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts ~~exist~~ exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the certificate for any shares of Common ~~Shares shall be issuable~~ Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common ~~Shares~~ Stock issuable upon conversion based on the Daily VWAP ~~for~~ on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP ~~for~~ on the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of ~~Common Shares~~ shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation ~~Period~~ Period, and any fractional ~~Common Shares~~ shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Samples: Indenture (Shutterfly Inc)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~14.02, Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), upon conversion of any Note, the Company shall ~~pay or deliver~~satisfy its Conversion Obligation by paying, ~~as the case may be~~and if applicable, delivering to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, ~~cash (~~a “~~Cash Settlement”), Common Shares,~~ Settlement Amount” equal to the sum of the Daily Settlement Amounts for each of the 25 consecutive Trading Days during the relevant Observation Period together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (ji) of this Section 11.02 (“Physical Settlement”) or a combination of cash and Common Shares, together with cash, if applicable, in lieu of delivering any fractional Common Shares in accordance with subsection (j) of this Section 11.02 (“Combination Settlement”), at its election, as set forth in this Section 11.0214.02. (i) All conversions for which the relevant Conversion Date occurs during the period from, and including, October 15, 2028 to the close of business on ~~or after September 1, 2025~~ the second Scheduled Trading Day immediately preceding the Maturity Date shall be settled using the same ~~Settlement Method. (ii)~~ Cash Percentage. Except for any conversions for which the relevant Conversion Date occurs during the period from, and including, October 15, 2028 to the close of business on ~~or after September 1, 2025~~the second Scheduled Trading Day immediately preceding the Maturity Date, the Company shall use the same ~~Settlement Method~~ Cash Percentage for all conversions ~~with~~ occurring on the same Conversion Date, but the Company shall not have any obligation to use the same ~~Settlement Method~~ Cash Percentage with respect to conversions ~~with~~ that occur on different Conversion Dates. (~~iii~~ii) If, in respect of any Conversion Date (or any conversions occurring during the period ~~described in~~ from, and including, October 15, 2028 to the ~~third~~ close of business on the second Scheduled Trading Day immediately ~~succeeding set of parentheses, as~~ preceding the ~~case may be~~Maturity Date), the Company elects to ~~deliver~~ settle all or a ~~notice (the “Settlement Notice”)~~ portion of its Conversion Obligation in excess of the ~~relevant Settlement Method~~ aggregate principal amount of the Notes being converted in cash in respect of such Conversion Date (or such period, as the case may be), the ~~Company~~Company shall inform Holders so converting in writing, ~~through~~ with a copy to the Trustee and the Conversion Agent (if other than the Trustee), ~~shall deliver~~ of such election (the “Settlement ~~Notice to converting Holders~~ Notice”) no later than the close of business on the ~~second~~ Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions ~~for which~~ occurring from, and including, October 15, 2028 to the ~~relevant Conversion Date occurs~~ close of business on ~~or after September 1, 2025~~the second Scheduled Trading Day immediately preceding the Maturity Date, no later than ~~September 1~~the close of business on the Business Day immediately preceding October 15, ~~2025~~2028), and the Company shall indicate in such Settlement Notice the percentage of the Conversion Obligation in excess of the aggregate principal amount of the Notes being converted that shall be paid in cash (the “Cash Percentage”). If the ~~Company does~~ relevant Holders are not ~~elect~~ informed of a ~~Settlement Method~~ Cash Percentage prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect a Cash ~~Settlement~~ Percentage with respect to any conversion on such Conversion Date or ~~Physical Settlement~~ during such period, as the case may be, and the Company shall be deemed to have elected ~~Combination Settlement in~~ a Cash Percentage of 0% with respect to such conversion. (iii) For any conversion of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. By notice to Holders of the Notes, the ~~Trustee and the Conversion Agent (if other than the Trustee)~~Daily Settlement Amounts, the ~~Company may~~Daily Net Settlement Amounts, prior to September 1, 2025, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through a Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 for all Conversion Dates occurring subsequent to delivery of such notice. Not later than three Business Days after providing notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee) of an irrevocable election with respect to the Settlement Method as described in the immediately preceding sentence, the Company shall issue a Current Report on Form 8-K or press release or otherwise provide public disclosure in a manner compliant with Regulation FD announcing that the Company has made such irrevocable election. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its option. (iv) The cash, Common Shares or combination of cash and Common Shares in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of Common Shares equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values ~~for each of~~ and the 50 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the relevant Observation Period. Promptly after such determination of the Daily Settlement ~~Amounts or~~ Amounts, the Daily Net Settlement Amounts, the Daily Conversion ~~Values~~Values and the Settlement Amount, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common ~~Share~~Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement ~~Amounts or~~ Amounts, the Daily Net Settlement Amounts, the Daily Conversion ~~Values~~Values and the Settlement Amount, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~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 any interest payable on the next Interest Payment Date ~~to which such Holder is not entitled~~ as set forth in Section ~~11.02(h~~14.02(g) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile 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 shares of Common ~~Shares~~ 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 ~~11.02(h~~14.02(g). The Trustee (~~and~~ and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such ~~Holder~~ Xxxxxx has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~12.03~~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~~, subject, in the case of Global Notes, to the rules of the applicable Depositary~~. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as ~~set forth~~ provided in Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), the Company shall pay ~~or deliver~~and, ~~as the case may be~~if applicable, deliver the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the ~~relevant Conversion Date, if the Company elects Physical Settlement, or on the second Business Day immediately following the~~ last Trading Day of the relevant Observation Period~~, in the case of any other Settlement Method~~. If any shares of Common ~~Shares~~ Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver ~~(if applicable)~~ to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be ~~entitled, in certificate form or in book-entry format,~~ entitled in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company (1) in the case of a Global Note, shall cause the principal balance of a Global Note to be adjusted in accordance with the procedures of the Depositary in effect at that time or (2) in the case of a Physical Note, shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the ~~issue~~ issuance of any shares of Common ~~Shares~~ Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common ~~Shares~~ Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f~~) Except as provided in Section 11.04, no adjustment shall be made for dividends on any Common Shares issued upon the conversion of any Note as provided in this Article 11. (g~~) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (hg) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below~~, and the Company shall not adjust the Conversion Rate to adjust 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 ~~excluding~~not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~not including, the relevant Conversion Date shall be deemed to be paid in full rather than ~~cancelled~~canceled, extinguished or forfeited. Upon a conversion of ~~Notes into a combination of cash and Common Shares~~Notes, any 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~~ an Interest Record Date, Holders of such Notes as of the close of business on such ~~Regular~~ Interest Record Date will receive the full amount of any interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any ~~Regular~~ Interest Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of any interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following ~~the Regular Record Date immediately preceding the Maturity Date~~February 1, 2029; (2) if the Company has specified a Fundamental Change Repurchase Date that is after ~~a Regular~~ an Interest Record Date and on or prior to the Business Day immediately ~~following~~ succeeding the date on which the corresponding ~~Interest Payment Date~~interest payment is made; or (3) to the extent of any interest constituting Defaulted Amounts, if any Defaulted Amounts exist at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on February 1, 2029 and any Fundamental Change Repurchase Date as described in clause (2) of the ~~Regular Record Date~~ immediately preceding ~~the Maturity Date~~ sentence shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date regardless of whether their Notes have been converted following such ~~Regular~~ Interest Record Date. (ih) The Person in whose name the certificate for any shares of Common ~~Shares shall be issuable~~ Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the ~~relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the~~ last Trading Day of the relevant Observation ~~Period (if the Company elects (or is deemed to have elected) to satisfy the related Conversion Obligation by Combination Settlement), as the case may be~~Period. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (ji) The Company shall not issue any fractional share of Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common ~~Shares~~ Stock issuable upon conversion ~~based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or~~ based on the Daily VWAP for the last Trading Day of the relevant Observation ~~Period (in the case of Combination Settlement)~~Period. For each Note surrendered for conversion, ~~if the Company has elected Combination Settlement,~~ the full number of shares of Common ~~Shares~~ Stock (if any) that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional ~~Common Shares~~ shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Samples: Indenture (Akamai Technologies Inc)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~14.02, Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~14.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~September 1~~October 15, ~~2025~~ 2022 shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs on or after ~~September 1~~October 15, ~~2025~~2022, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion Date (or the period described in the third immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the ~~Company, through the Trustee,~~ Company shall deliver such Settlement Notice to the Conversion Agent and converting Holders no later than the close of business on the ~~second~~ first Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs on or after ~~September 1~~October 15, ~~2025~~2022, no later than ~~September 1~~October 15, ~~2025~~2022). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. By notice to Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 1, 2025, at its option, irrevocably elect to satisfy its Conversion Obligation with respect Notwithstanding anything to the Notes through a Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 for all Conversion Dates occurring subsequent to delivery of such notice. Not later than three Business Days after providing notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee) of an irrevocable election with respect to the Settlement Method as described contrary in the ~~immediately preceding sentence~~foregoing, the Company shall ~~issue a Current Report on Form 8-K or press release or otherwise provide public disclosure~~ be permitted to irrevocably elect Physical Settlement in ~~a manner compliant~~ any Certain Distributions Notification and any such election would be applicable to conversions with ~~Regulation FD announcing~~ Conversion Dates that occur after delivery to the ~~Company has made such irrevocable election. For~~ Holders of the ~~avoidance of doubt, such an irrevocable election, if made, will be effective without~~ Certain Distributions Notification until the ~~need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its option~~Certain Distributions Conversion Period End Date. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion ~~Date~~Date (plus cash in lieu of any fractional share of Common Stock issuable upon conversion); (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 40 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 40 consecutive Trading Days during the related Observation ~~Period~~Period (plus cash in lieu of any fractional share of Common Stock issuable upon conversion). (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common ~~Share~~Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time and, if required, pay funds equal to the interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~11.02(h~~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 an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common ~~Shares~~ 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 ~~11.02(h~~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 11 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~12.03~~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~~, subject, in the case of Global Notes, to the rules of the applicable Depositary~~. (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 ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects to satisfy its Conversion Obligation through Physical Settlement, or on the second Business Day immediately following the last Trading Day of the Observation Period, in if the ~~case of~~ Company elects to satisfy its Conversion Obligation through any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to a converting ~~Holders~~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 shares of Common ~~Shares~~ Stock to which such Holder shall be entitled, in ~~certificate form or in~~ book-entry ~~format~~format through the Depositary, in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company (1) in the case of a Global Note, shall cause the principal balance of a Global Note to be adjusted in accordance with the procedures of the Depositary in effect at that time or (2) in the case of a Physical Note, shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common ~~Shares~~ Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common ~~Shares~~ Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section ~~11.04~~14.04, no adjustment shall be made for dividends on any shares of Common ~~Shares~~ Stock issued upon the conversion of any Note as provided in this Article 1114. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below~~, and the Company shall not adjust the Conversion Rate to adjust 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 excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date but prior to the open of business on the immediately following Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on ~~the corresponding~~ such Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so ~~converted~~converted on the corresponding Interest Payment Date (regardless of whether the converting Holder was the Holder of record on the corresponding Regular Record Date); provided that no such payment shall be required (1) for conversions following the close of business on the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts ~~exist~~ exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date and any Fundamental Change Repurchase Date described in clause (2) above shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted and/or repurchased, as applicable, following such Regular Record Date. (i) The Person in whose name the shares of Common ~~Shares~~ 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 (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common ~~Shares~~ Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of ~~Common Shares~~ shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional ~~Common Shares~~ shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Samples: Indenture (Okta, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~14.02, Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~14.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~September~~ May 1, ~~2025~~ 2023 shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs on or after ~~September~~ May 1, ~~2025~~2023, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion Date (or the period described in the third immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the ~~Company, through the Trustee,~~ Company shall deliver such Settlement Notice to converting ~~Holders~~ Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the ~~second~~ Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs on or after ~~September~~ May 1, ~~2025~~2023, no later than ~~September~~ May 1, ~~2025~~2023). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. By notice to Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 1, 2025, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through a Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 for all Conversion Dates occurring subsequent to delivery of such notice. Not later than three Business Days after providing notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee) of an irrevocable election with respect to the Settlement Method as described in the immediately preceding sentence, the Company shall issue a Current Report on Form 8-K or press release or otherwise provide public disclosure in a manner compliant with Regulation FD announcing that the Company has made such irrevocable election. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its option. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion ~~Date~~Date (plus cash in lieu of any fractional shares of Common Stock issuable upon conversion); (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 40 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 40 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common ~~Share~~Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time for converting a beneficial interest in a Global Note and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~11.02(h~~14.02(h) and, if required, pay all transfer or similar taxes, if any, as set forth in Section 14.02(e) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile 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 shares of Common ~~Shares~~ 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 ~~11.02(h~~14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~12.03~~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~~, subject, in the case of Global Notes, to the rules of the applicable Depositary~~. (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 ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to a converting ~~Holders~~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 shares of Common ~~Shares~~ Stock to which such Holder shall be entitled, in ~~certificate form or in~~ book-entry ~~format~~format through the Depositary, in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company (1) in the case of a Global Note, shall cause the principal balance of a Global Note to be adjusted in accordance with the procedures of the Depositary in effect at that time or (2) in the case of a Physical Note, shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common ~~Shares~~ Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common ~~Shares~~ Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section ~~11.04~~14.04, no adjustment shall be made for dividends on any shares of Common ~~Shares~~ Stock issued upon the conversion of any Note as provided in this Article 1114. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below~~, and the Company shall not adjust the Conversion Rate to adjust 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 ~~excluding~~not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~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 ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts ~~exist~~ exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the shares of Common ~~Shares~~ 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 (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common ~~Shares~~ Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of ~~Common Shares~~ shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional ~~Common Shares~~ shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Samples: Indenture (Kbr, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~14.02, Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~14.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~September~~ December 1, ~~2025~~ 2027 shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs on or after ~~September~~ December 1, ~~2025,~~ 2027 the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion Date (or the period described in the third immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the ~~Trustee~~Conversion Agent, shall deliver such Settlement Notice to converting Holders no later than the close of business on the ~~second~~ Trading Day immediately following the ~~relevant~~ related Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs on or after ~~September~~ December 1, ~~2025,~~ 2027 no later than ~~September~~ December 1, ~~2025~~2027). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to any conversion on such Conversion Date or during such period, and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. By notice to Holders ~~of the Notes,~~ (with a copy to the Trustee and ~~the~~ Conversion ~~Agent (if other than the Trustee~~Agent), the Company may, prior to ~~September~~ December 1, ~~2025~~2027, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through a Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 for all Conversion Dates occurring subsequent to delivery of such notice. Not later than three Business Days after providing notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee) of an irrevocable election with respect to the Settlement Method as described in the immediately preceding sentence, the Company shall issue a Current Report on Form 8-K or press release or otherwise provide public disclosure in a manner compliant with Regulation FD announcing that the Company has made such irrevocable election. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its option. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 40 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 40 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common ~~Share~~Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~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 ~~11.02(h~~14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent and the Trustee (if the Trustee is not the Conversion Agent) as set forth in the Form of Notice of Conversion (or a ~~facsimile~~ facsimile, PDF or other electronic transmission thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common ~~Shares~~ Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer ~~documents~~ documents, (4) if required, pay all transfer and similar taxes 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 ~~11.02(h~~14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such ~~Holder~~ Xxxxxx has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~12.03~~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~~, subject, in the case of Global Notes, to the rules of the applicable Depositary~~. (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 ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on no later than the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to a converting ~~Holders~~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 shares of Common ~~Shares~~ Stock to which such Holder shall be entitled, in ~~certificate form or in~~ book-entry ~~format~~format through the Depositary, in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company (1) in the case of a Global Note, shall cause the principal balance of a Global Note to be adjusted in accordance with the procedures of the Depositary in effect at that time or (2) in the case of a Physical Note, shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common ~~Shares~~ Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The ~~Conversion Agent~~ Company may refuse to deliver the certificates representing the shares of Common ~~Shares~~ Stock being issued in a name other than the Holder’s name until the ~~Trustee~~ Company receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section ~~11.04~~14.04, no adjustment shall be made for dividends on any shares of Common ~~Shares~~ Stock issued upon the conversion of any Note as provided in this Article 1114. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below~~, and the Company shall not adjust the Conversion Rate to adjust 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 ~~excluding~~not including, the relevant Conversion Date. ~~As a result~~Accordingly, accrued and unpaid interest, if any, to, but ~~excluding~~not including, the relevant Conversion Date shall be deemed to be paid in full upon conversion rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date but prior to the open of business on the immediately following Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record ~~Date~~ Date, will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (3) to the extent of any Defaulted ~~Amounts~~Amounts or Additional Interest, if any Defaulted Amounts ~~exist~~ or Additional Interest exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the shares of Common ~~Shares~~ 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 (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common ~~Shares~~ Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of ~~Common Shares~~ shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional ~~Common Shares~~ shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Samples: Indenture (Ziff Davis, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~13.02, Section ~~11.03(b~~13.03(b) and Section ~~11.07(a~~13.07(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of ~~delivering~~ any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 13.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of ~~delivering~~ any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 13.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~13.02. (i) All conversions ~~for which the relevant Conversion Date occurs~~ occurring on or after ~~September 1~~October 15, ~~2025~~ 2015 shall be settled using the same Settlement Method. (ii) ~~Except for any conversions for which the relevant Conversion Date occurs on or after September 1~~Prior to October 15, ~~2025~~2015, the Company shall use the same Settlement Method for all conversions ~~with~~ occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions ~~with~~ that occur on different Conversion Dates. (iii) If, in respect of any Conversion Date (or any conversions of Notes occurring during the period ~~described in~~ beginning on, but excluding, October 15, 2015 and ending on, and including, the ~~third~~ Business Day immediately ~~succeeding set of parentheses~~preceding the Maturity Date, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the close of business on the ~~second~~ Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions ~~for which the relevant Conversion Date occurs~~ occurring on or after ~~September 1~~October 15, ~~2025~~2015, no later than ~~September 1~~October 15, ~~2025~~2015). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar ~~Amount per $1,000 principal amount of Notes~~Amount. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount ~~per $1,000 principal amount of Notes~~ in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. By notice to Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 1, 2025, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through a Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 for all Conversion Dates occurring subsequent to delivery of such notice. Not later than three Business Days after providing notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee) of an irrevocable election with respect to the Settlement Method as described in the immediately preceding sentence, the Company shall issue a Current Report on Form 8-K or press release or otherwise provide public disclosure in a manner compliant with Regulation FD announcing that the Company has made such irrevocable election. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its option. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed by the Company as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted ~~cash in~~ an amount in cash equal to the sum of the Daily Conversion Values for each of the 50 15 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 15 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of ~~delivering~~ any fractional ~~Common Share~~share, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of ~~delivering~~ fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~13.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~11.02(h~~13.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common ~~Shares~~ 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 ~~11.02(h~~13.02(h). The Trustee (~~and~~ and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 13 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such ~~Holder~~ Xxxxxx has also delivered a Fundamental Change Repurchase Notice to the Company (or Paying Agent) in respect of such Notes and ~~has~~ not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~12.03~~14.02. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered~~, subject, in the case of Global Notes, to the rules of the applicable Depositary~~. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as ~~set forth~~ provided in Section ~~11.03(b~~13.03(b) and in Section ~~11.07(a)~~13.07, the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the ~~second~~ third Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the ~~second~~ third Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver ~~(if applicable) to the Conversion Agent or~~ to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be ~~entitled, in certificate form or in book-entry format,~~ entitled in satisfaction of the portion of the Company’s Conversion ~~Obligation~~Obligation that consists of shares of Common Stock, and, on or prior to such issuance, the Company shall give the Conversion Agent notice of the number of shares of Common Stock being so issued and the method by which the issuance shall take place. Any required funds due to a converting Holder in connection with a Cash Settlement or Combination Settlement shall be delivered to the Paying Agent and such Holder, or such Holder’s nominee or nominees, in accordance with the same procedures that apply in connection with the payment of the Fundamental Change Repurchase Price as set forth in Section 14.03. (d) In case any Note shall be surrendered for partial conversion, the Company (1) in the case of a Global Note, shall cause the principal balance of a Global Note to be adjusted in accordance with the procedures of the Depositary in effect at that time or (2) in the case of a Physical Note, 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 or similar issue or transfer tax due on the issue of any shares of Common ~~Shares~~ Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common ~~Shares~~ Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such ~~Holder~~ Xxxxxx in accordance with the immediately preceding sentence. (f) Except as provided in Section ~~11.04~~13.04, no adjustment shall be made for dividends on any ~~Common Shares~~ shares issued upon the conversion of any Note as provided in this Article 1114. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below~~, and the Company shall not adjust the Conversion Rate to adjust 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 ~~excluding~~not including, the ~~relevant~~ Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~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 ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts exist at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the certificate for any shares of Common ~~Shares shall be issuable~~ Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects (or is deemed to have elected) to satisfy the related Conversion Obligation by Combination Settlement), as the case may be, in each case solely for the purpose of receiving or participating in any dividend, distribution, issuance, share split or combination, tender or exchange offer or any other event that would lead to a Conversion Rate adjustment as described in Section 13.04. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of ~~delivering~~ any fractional share of Common ~~Shares~~ Stock issuable upon conversion based on the Daily VWAP ~~for~~ on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP ~~for~~ on the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of ~~Common Shares~~ shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the ~~relevant~~ applicable Observation Period and any fractional ~~Common Shares~~ shares remaining after such computation shall be paid in cash. (k) Notwithstanding anything to the contrary herein, no Holder shall be entitled to receive shares of Common Stock upon conversion to the extent (but only to the extent) that such receipt would cause such converting Holder to become, directly or indirectly, a “beneficial owner” (within the meaning of Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) of more than 5.0% of the shares of Common Stock outstanding at such time (the “Limitation”). Any purported delivery of shares of Common Stock upon conversion of Notes shall be void and have no effect to the extent (but only to the extent) that such delivery would result in the converting Holder becoming the beneficial owner of more than the Limitation. If any delivery of shares of Common Stock owed to a Holder upon conversion of Notes is not made, in whole or in part, as a result of the Limitation, the Company’s obligation to make such delivery shall not be extinguished and the Company shall deliver such shares as promptly as practicable after any such converting Holder gives notice to the Company that such delivery would not result in it being the beneficial owner of more than 5.0% of the shares of Common Stock outstanding at such time. The Limitation shall no longer apply following the effective date of any Fundamental Change.

Appears in 1 contract

Samples: Indenture (Hercules Technology Growth Capital Inc)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~12.02, Section ~~11.03(b~~12.03(b) and Section ~~11.07(a~~12.07(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 12.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 12.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~12.02. (i) All conversions for which the relevant Conversion Date occurs on or after September 1, ~~2025~~ 2023 shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs on or after September 1, ~~2025~~2023, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion Date (~~or the period described~~ or, in the ~~third immediately succeeding set~~ case of ~~parentheses~~any conversions for which the relevant Conversion Date occurs on or after September 1, ~~as the case may be~~2023), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or all such ~~period~~conversions, as the case may be), the ~~Company, through the Trustee,~~ Company shall deliver such Settlement Notice to converting ~~Holders~~ Holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing, no later than the close of business on the ~~second~~ Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs on or after September 1, ~~2025~~2023, no later than September 1, ~~2025~~2023). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement for such conversion (or, in the case of conversions for which the relevant Conversion Date occurs on or after September 1, 2023, for all such conversions) and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. ~~Such~~ Each Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation for a conversion (or, in the case of conversions for which the relevant Conversion Date occurs on or after September 1, 2023, for all such conversions), but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. ~~By notice to Holders~~ For the avoidance of ~~the Notes~~doubt, ~~the Trustee and the Conversion Agent (~~if ~~other than the Trustee),~~ the Company ~~may,~~ does not elect a Settlement Method on or prior to September 1, ~~2025~~2023 for all conversions for which the relevant Conversion Date occurs on or after September 1, ~~at its option~~2023, ~~irrevocably elect~~ the Company shall be deemed to ~~satisfy its Conversion Obligation with respect to the Notes through a~~ have elected Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of equal to $1,000 for all ~~Conversion Dates occurring subsequent to delivery of~~ such notice. Not later than three Business Days after providing notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee) of an irrevocable election with respect to the Settlement Method as described in the immediately preceding sentence, the Company shall issue a Current Report on Form 8-K or press release or otherwise provide public disclosure in a manner compliant with Regulation FD announcing that the Company has made such irrevocable election. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its optionconversions. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed by the Company as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the applicable Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay through the Conversion Agent to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 70 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 70 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the relevant Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common ~~Share~~Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~12.02(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 ~~11.02(h~~12.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any Common Shares 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 ~~11.02(h~~12.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 12 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~12.03~~13.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered~~, subject, in the case of Global Notes, to the rules of the applicable Depositary~~. (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~~above (the “Conversion Date”). Except as set forth in Section ~~11.03(b~~12.03(b) and Section ~~11.07(a~~12.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on no later than the ~~second Business~~ third Scheduled Trading Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on no later than the ~~second Business~~ third Scheduled Trading Day immediately following the last Trading Day of the relevant Observation Period, in the case of any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver ~~(if applicable) to the Conversion Agent or~~ to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be ~~entitled, in certificate form or in book-entry format,~~ entitled in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company (1) in the case of a Global Note, shall cause the principal balance of a Global Note to be adjusted in accordance with the procedures of the Depositary in effect at that time or (2) in the case of a Physical Note, 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~~ residual balance 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~~ residual balance Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common ~~Shares~~ Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Company or the Conversion Agent may refuse to deliver the certificates representing the shares of Common ~~Shares~~ Stock being issued in a name other than the Holder’s name until the ~~Trustee~~ Company receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section ~~11.04~~12.04, no adjustment shall be made for dividends on any shares of Common ~~Shares~~ Stock issued upon the conversion of any Note as provided in this Article 1112. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below~~, and the Company shall not adjust the Conversion Rate to adjust 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 ~~excluding~~not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~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 ~~Shares~~Stock, accrued and unpaid interest ~~will~~ shall be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date ~~will~~ shall receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so 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 second Scheduled Trading Day immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (3) to the extent of any ~~Defaulted Amounts~~overdue interest, if any ~~Defaulted Amounts exist~~ overdue interest exists at the time of conversion with respect to such ~~Note~~Notes. Therefore, for the avoidance of doubt, all Holders at the close of ~~record~~ business on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name ~~the~~ any shares of Common ~~Shares~~ 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 (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common ~~Shares~~ Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of ~~Common Shares~~ shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional ~~Common Shares~~ shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Samples: Second Supplemental Indenture (Atlas Air Worldwide Holdings Inc)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~14.02, Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~14.02. (i) All conversions for which the relevant Conversion Date occurs on or after September 115, ~~2025~~ 2021 shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs on or after September 115, ~~2025~~2021, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion Date (or the period described in the third immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the ~~Company, through the Trustee,~~ Company shall deliver such Settlement Notice to converting Holders and the Trustee no later than the close of business on the ~~second~~ Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs on or after September 115, ~~2025~~2021, no later than September 115, ~~2025~~2021). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. By notice to Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 1, 2025, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through a Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 for all Conversion Dates occurring subsequent to delivery of such notice. Not later than three Business Days after providing notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee) of an irrevocable election with respect to the Settlement Method as described in the immediately preceding sentence, the Company shall issue a Current Report on Form 8-K or press release or otherwise provide public disclosure in a manner compliant with Regulation FD announcing that the Company has made such irrevocable election. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its option. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 40 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 40 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common ~~Share~~Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~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 ~~11.02(h~~14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile 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 shares of Common ~~Shares~~ 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 ~~11.02(h~~14.02(h). The ~~Trustee (and if different, the~~ Conversion ~~Agent)~~ Agent shall notify the Company of any conversion pursuant to this Article 11 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~12.03~~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~~, subject, in the case of Global Notes, to the rules of the applicable Depositary~~. (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 ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the ~~second~~ third Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the ~~second~~ third Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be entitled, in certificate form or in book-entry format, in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company (1) in the case of a Global Note, shall cause the principal balance of a Global Note to be adjusted in accordance with the procedures of the Depositary in effect at that time or (2) in the case of a Physical Note, shall execute and the Trustee shall authenticate and deliver (or cause to be transferred by book entry) to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common ~~Shares~~ Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common ~~Shares~~ Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section ~~11.04~~14.04, no adjustment shall be made for dividends on any shares of Common ~~Shares~~ Stock issued upon the conversion of any Note as provided in this Article 1114. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below~~, and the Company shall not adjust the Conversion Rate to adjust 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 ~~excluding~~not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~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 ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts ~~exist~~ exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date, and the converting Holder need not make a corresponding payment to the Company as described in this Section 14.02(h). (i) The Person in whose name the shares of Common ~~Shares~~ 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 (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common ~~Shares~~ Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of ~~Common Shares~~ shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional ~~Common Shares~~ shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Samples: Indenture (Blackhawk Network Holdings, Inc)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~13.02, Section ~~11.03(b~~13.03(b) and Section ~~11.07(a~~13.07(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of ~~delivering~~ any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 13.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of ~~delivering~~ any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 13.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~13.02. (i) All conversions ~~for which the relevant Conversion Date occurs~~ occurring on or after ~~September 1~~August 15, ~~2025~~ 2015 shall be settled using the same Settlement Method. (ii) ~~Except for any conversions for which the relevant Conversion Date occurs on or after September 1~~Prior to August 15, ~~2025~~2015, the Company shall use the same Settlement Method for all conversions ~~with~~ occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions ~~with~~ that occur on different Conversion Dates. (iii) If, in respect of any Conversion Date (or any conversions of Notes occurring during the period ~~described in~~ beginning on, but excluding, August 15, 2015 and ending on, and including, the ~~third~~ Business Day immediately ~~succeeding set of parentheses~~preceding the Maturity Date, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the close of business on the ~~second~~ Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions ~~for which the relevant Conversion Date occurs~~ occurring on or after ~~September 1~~August 15, ~~2025~~2015, no later than ~~September 1~~August 15, ~~2025~~2015). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar ~~Amount per $1,000 principal amount of Notes~~Amount. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount ~~per $1,000 principal amount of Notes~~ in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. By notice to Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 1, 2025, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through a Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 for all Conversion Dates occurring subsequent to delivery of such notice. Not later than three Business Days after providing notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee) of an irrevocable election with respect to the Settlement Method as described in the immediately preceding sentence, the Company shall issue a Current Report on Form 8-K or press release or otherwise provide public disclosure in a manner compliant with Regulation FD announcing that the Company has made such irrevocable election. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its option. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed by the Company as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted ~~cash in~~ an amount in cash equal to the sum of the Daily Conversion Values for each of the 50 15 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 15 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of ~~delivering~~ any fractional ~~Common Share~~share, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of ~~delivering~~ fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~13.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~11.02(h~~13.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common ~~Shares~~ 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 ~~11.02(h~~13.02(h). The Trustee (~~and~~ and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 13 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and ~~has~~ not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~12.03~~14.02. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered~~, subject, in the case of Global Notes, to the rules of the applicable Depositary~~. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as ~~set forth~~ provided in Section ~~11.03(b~~13.03(b) and in Section ~~11.07(a)~~13.07, the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the ~~second~~ third Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the ~~second~~ third Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver ~~(if applicable) to the Conversion Agent or~~ to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be ~~entitled, in certificate form or in book-entry format,~~ entitled in satisfaction of the portion of the Company’s Conversion ~~Obligation~~Obligation that consists of shares of Common Stock, and, on or prior to such issuance, the Company shall give the Conversion Agent notice of the number of shares of Common Stock being so issued and the method by which the issuance shall take place. (d) In case any Note shall be surrendered for partial conversion, the Company (1) in the case of a Global Note, shall cause the principal balance of a Global Note to be adjusted in accordance with the procedures of the Depositary in effect at that time or (2) in the case of a Physical Note, 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 or similar issue or transfer tax due on the issue of any shares of Common ~~Shares~~ Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common ~~Shares~~ Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section ~~11.04~~13.04, no adjustment shall be made for dividends on any ~~Common Shares~~ shares issued upon the conversion of any Note as provided in this Article 1114. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below~~, and the Company shall not adjust the Conversion Rate to adjust 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 ~~excluding~~not including, the ~~relevant~~ Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~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 ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts exist at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the certificate for any shares of Common ~~Shares shall be issuable~~ Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Combination Settlement), as the case may be, in each case solely for the purpose of receiving or participating in any dividend, distribution, issuance, share split or combination, tender or exchange offer or any other event that would lead to a Conversion Rate adjustment as described in Section 13.04. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of ~~delivering~~ any fractional share of Common ~~Shares~~ Stock issuable upon conversion based on the Daily VWAP ~~for~~ on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP ~~for~~ on the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of ~~Common Shares~~ shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the ~~relevant~~ applicable Observation Period and any fractional ~~Common Shares~~ shares remaining after such computation shall be paid in cash. (k) Notwithstanding anything to the contrary herein, no Holder shall be entitled to receive shares of Common Stock upon conversion to the extent (but only to the extent) that such receipt would cause such converting Holder to become, directly or indirectly, a “beneficial owner” (within the meaning of Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) of more than 5.0% of the shares of Common Stock outstanding at such time (the “Limitation”). Any purported delivery of shares of Common Stock upon conversion of Notes shall be void and have no effect to the extent (but only to the extent) that such delivery would result in the converting Holder becoming the beneficial owner of more than the Limitation. If any delivery of shares of Common Stock owed to a Holder upon conversion of Notes is not made, in whole or in part, as a result of the Limitation, the Company’s obligation to make such delivery shall not be extinguished and the Company shall deliver such shares as promptly as practicable after any such converting Holder gives notice to the Company that such delivery would not result in it being the beneficial owner of more than 5.0% of the shares of Common Stock outstanding at such time. The Limitation shall no longer apply following the effective date of any Fundamental Change.

Appears in 1 contract

Samples: Indenture (Ares Capital Corp)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~14.02, Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~14.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~September~~ November 1, ~~2025~~ 2023 shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs on or after ~~September~~ November 1, ~~2025~~2023, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion Date (or the period described in the third immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the ~~Trustee~~Trustee via a written request, shall deliver such Settlement Notice to converting Holders no later than the close of business on the ~~second~~ Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs on or after ~~September~~ November 1, ~~2025~~2023, no later than ~~September~~ November 1, ~~2025~~2023). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. By notice to Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 1, 2025, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through a Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 for all Conversion Dates occurring subsequent to delivery of such notice. Not later than three Business Days after providing notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee) of an irrevocable election with respect to the Settlement Method as described in the immediately preceding sentence, the Company shall issue a Current Report on Form 8-K or press release or otherwise provide public disclosure in a manner compliant with Regulation FD announcing that the Company has made such irrevocable election. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its option. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 60 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 60 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common ~~Share~~Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) ~~Subject to Section 11.02(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 ~~11.02(h~~14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile 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 shares of Common ~~Shares~~ 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, 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 ~~11.02(h~~14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~12.03~~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~~, subject, in the case of Global Notes, to the rules of the applicable Depositary~~. (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 ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the ~~second~~ third Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the ~~second~~ third Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method; provided that with respect to conversions for which Physical Settlement is applicable and the relevant Conversion Date occurs after the Regular Record Date immediately preceding the Maturity Date, the Company shall deliver (and, if applicable, pay) the consideration due in respect of such conversions on the Maturity Date (or, if the Maturity Date is not a Business Day, on the next succeeding Business Day). If any shares of Common ~~Shares~~ Stock are due to a converting ~~Holders~~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 shares of Common ~~Shares~~ Stock to which such Holder shall be entitled, in ~~certificate form or in~~ book-entry ~~format~~format through the Depositary, in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company ~~(1) in the case~~ shall execute and, upon receipt of a ~~Global Note~~Company Order, ~~shall cause the principal balance of a Global Note to be adjusted in accordance with the procedures of the Depositary in effect at that time or (2) in the case of a Physical Note, shall execute and~~ the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common ~~Shares~~ Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common ~~Shares~~ Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section ~~11.04~~14.04, no adjustment shall be made for dividends on any shares of Common ~~Shares~~ Stock issued upon the conversion of any Note as provided in this Article 1114. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below~~, and the Company shall not adjust the Conversion Rate to adjust 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 ~~excluding~~not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~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 ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so converted; provided that no such payment shall be required (1) for conversions ~~following~~ after the close of business on the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts ~~exist~~ exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all applicable Holders of record at the close of business on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the shares of Common ~~Shares~~ 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 (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common ~~Shares~~ Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of ~~Common Shares~~ shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional ~~Common Shares~~ shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Samples: Indenture (KAMAN Corp)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~13.02, Section ~~11.03(b~~13.03(b) and Section ~~11.07(a~~13.07(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of ~~delivering~~ any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 13.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of ~~delivering~~ any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 13.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~13.02. (i) All conversions ~~for which the relevant Conversion Date occurs~~ occurring on or after ~~September 1~~June 15, ~~2025~~ 2019 shall be settled using the same Settlement Method. (ii) ~~Except for any conversions for which the relevant Conversion Date occurs on or after September 1~~Prior to June 15, ~~2025~~2019, the Company shall use the same Settlement Method for all conversions ~~with~~ occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions ~~with~~ that occur on different Conversion Dates. (iii) If, in respect of any Conversion Date (or any conversions of Notes occurring during the period ~~described in~~ beginning on, and including, June 15, 2019 and ending on, and including, the ~~third~~ Scheduled Trading Day immediately ~~succeeding set of parentheses~~preceding the Maturity Date, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the close of business on the ~~second~~ Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions ~~for which the relevant Conversion Date occurs~~ occurring on or after ~~September 1~~June 15, ~~2025~~2019, no later than ~~September 1~~June 15, ~~2025~~2019). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar ~~Amount per $1,000 principal amount of Notes~~Amount. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount ~~per $1,000 principal amount of Notes~~ in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. By notice to Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 1, 2025, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through a Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 for all Conversion Dates occurring subsequent to delivery of such notice. Not later than three Business Days after providing notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee) of an irrevocable election with respect to the Settlement Method as described in the immediately preceding sentence, the Company shall issue a Current Report on Form 8-K or press release or otherwise provide public disclosure in a manner compliant with Regulation FD announcing that the Company has made such irrevocable election. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its option. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed by the Company as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted ~~cash in~~ an amount in cash equal to the sum of the Daily Conversion Values for each of the 50 40 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 40 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of ~~delivering~~ any fractional ~~Common Share~~share, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of ~~delivering~~ fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~13.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~11.02(h~~13.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common ~~Shares~~ 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 ~~11.02(h~~13.02(h). The Trustee (~~and~~ and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 13 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such ~~Holder~~ Xxxxxx has also delivered a Fundamental Change Repurchase Notice to the ~~Company~~ Paying Agent in respect of such Notes and ~~has~~ not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~12.03~~14.02. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered~~, subject, in the case of Global Notes, to the rules of the applicable Depositary~~. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as ~~set forth~~ provided in Section ~~11.03(b~~13.03(b) and in Section ~~11.07(a)~~13.07, the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the ~~second~~ third Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the ~~second~~ third Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver ~~(if applicable) to the Conversion Agent or~~ to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be ~~entitled, in certificate form or in book-entry format,~~ entitled in satisfaction of the portion of the Company’s Conversion ~~Obligation~~Obligation that consists of shares of Common Stock, and, on or prior to such issuance, the Company shall give the Conversion Agent notice of the number of shares of Common Stock being so issued and the method by which the issuance shall take place. Any required funds due to a converting Holder in connection with a Cash Settlement or Combination Settlement shall be delivered to the Paying Agent and such Holder, or such Holder’s nominee or nominees, in accordance with the procedures set forth in Section 14.03. (d) In case any Note shall be surrendered for partial conversion, the Company (1) in the case of a Global Note, shall cause the principal balance of a Global Note to be adjusted in accordance with the procedures of the Depositary in effect at that time or (2) in the case of a Physical Note, 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 or similar issue or transfer tax due on the issue of any shares of Common ~~Shares~~ Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common ~~Shares~~ Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section ~~11.04~~13.04, no adjustment shall be made for dividends on any ~~Common Shares~~ shares issued upon the conversion of any Note as provided in this Article 1114. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon conversion, a Holder shall not receive any ~~separate~~ cash payment for accrued and unpaid interest, if any, except as set forth below~~, and the Company shall not adjust the Conversion Rate to adjust 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 ~~excluding~~not including, the ~~relevant~~ Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~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 ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts exist at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the certificate for any shares of Common ~~Shares shall be issuable~~ Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Combination Settlement), as the case may be, in each case solely for the purpose of receiving or participating in any dividend, distribution, issuance, share split or combination, tender or exchange offer or any other event that would lead to a Conversion Rate adjustment as described in Section 13.04. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of ~~delivering~~ any fractional share of Common ~~Shares~~ Stock issuable upon conversion based on the Daily VWAP ~~for~~ on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP ~~for~~ on the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of ~~Common Shares~~ shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the ~~relevant~~ applicable Observation Period and any fractional ~~Common Shares~~ shares remaining after such computation shall be paid in cash. (k) Notwithstanding anything to the contrary herein, no Holder shall be entitled to receive shares of Common Stock upon conversion to the extent (but only to the extent) that such receipt would cause such converting Holder to become, directly or indirectly, a “beneficial owner” (within the meaning of Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) of more than 5.0% of the shares of Common Stock outstanding at such time (the “Limitation”). Any purported delivery of shares of Common Stock upon conversion of Notes shall be void and have no effect to the extent (but only to the extent) that such delivery would result in the converting Holder becoming the beneficial owner of more than the Limitation. If any delivery of shares of Common Stock owed to a Holder upon conversion of Notes is not made, in whole or in part, as a result of the Limitation, the Company’s obligation to make such delivery shall not be extinguished and the Company shall deliver such shares as promptly as practicable after any such converting Holder gives notice to the Company that such delivery would not result in it being the beneficial owner of more than 5.0% of the shares of Common Stock outstanding at such time. The Limitation shall no longer apply following the effective date of any Fundamental Change.

Appears in 1 contract

Samples: Indenture (TPG Specialty Lending, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~14.02, Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~14.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~September~~ November 1, ~~2025~~ 2022 shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs on or after ~~September~~ November 1, ~~2025~~2022, the Company shall use the same Settlement Method for all conversions ~~with~~ occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion Date (or the period described in the third immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the ~~Company, through the Trustee,~~ Company shall deliver such Settlement Notice to the Conversion Agent and converting Holders no later than the close of business on the ~~second~~ Trading Day immediately following the ~~relevant~~ related Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs on or after ~~September~~ November 1, ~~2025~~2022, no later than ~~September~~ the close of business on November 1, ~~2025~~2022). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement for such conversion on the relevant Conversion Date or during the relevant period and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice timely electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes to be converted in such Settlement Notice, ~~the~~ such Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. By notice to Holders of the Notes, the ~~Trustee and the Conversion Agent (if other than the Trustee), the~~ Company may, prior to ~~September~~ November 1, ~~2025~~2022, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through a Combination Settlement with a Specified Dollar ~~Amount~~ amount per $1,000 principal amount of Notes of $1,000 for all Conversion Dates occurring subsequent to delivery of such notice. Not later than three Business Days after providing notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee) of an irrevocable election with respect to the Settlement Method as described in the immediately preceding sentence, the Company shall issue a Current Report on Form 8-K or press release or otherwise provide public disclosure in a manner compliant with Regulation FD announcing that the Company has made such irrevocable election. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its option. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 40 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 40 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common ~~Share~~Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~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 ~~11.02(h~~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 an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common ~~Shares~~ 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 ~~11.02(h~~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 11 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~12.03~~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~~, subject, in the case of Global Notes, to the rules of the applicable Depositary~~. (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 ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects to satisfy its Conversion Obligation through Physical ~~Settlement~~Settlement (provided that, with respect to any Conversion Date for which Physical Settlement is applicable occurring after the Regular Record Date immediately preceding the Maturity Date, the Company shall deliver the consideration due in respect of the related Conversion Obligation on the Maturity Date), or on the second Business Day immediately following the last Trading Day of the Observation Period, in if the ~~case of~~ Company elects to satisfy its Conversion Obligation through any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to a converting ~~Holders~~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 shares of Common ~~Shares~~ Stock to which such Holder shall be entitled, in ~~certificate form or in~~ book-entry ~~format~~format through the Depositary, in satisfaction of the Company’s Conversion Obligation. (d) In ~~case~~ respect of certificated Notes, any Note shall be surrendered for partial conversion, the Company (1) in the case of a Global Note, shall cause the principal balance of a Global Note to be adjusted in accordance with the procedures of the Depositary in effect at that time or (2) in the case of a Physical Note, shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common ~~Shares~~ Stock upon conversion, unless the tax is due because the Holder requests any such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common ~~Shares~~ Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section ~~11.04~~14.04, no adjustment shall be made for dividends on any shares of Common ~~Shares~~ Stock issued upon the conversion of any Note as provided in this Article 1114. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below~~, and the Company shall not adjust the Conversion Rate to adjust 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 ~~excluding~~not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~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 ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on ~~the corresponding~~ such Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the close of business on the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately ~~following~~ succeeding the corresponding Interest Payment Date; or (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts ~~exist~~ exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date and any Fundamental Change Repurchase Date described in clause (2) above shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted and/or repurchased, as applicable, following such Regular Record Date. (i) The Person in whose name ~~the~~ any shares of Common ~~Shares~~ Stock shall be issuable upon conversion shall ~~be treated as a~~ become the stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common ~~Shares~~ Stock issuable upon conversion based on the Daily VWAP ~~for~~ on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP ~~for~~ on the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of ~~Common Shares~~ shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional ~~Common Shares~~ shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Samples: Indenture (New Relic, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~13.02, Section ~~11.03(b~~13.03(b) and Section ~~11.07(a~~13.07(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of ~~delivering~~ any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 13.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of ~~delivering~~ any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 13.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~13.02. (i) All conversions ~~for which the relevant Conversion Date occurs~~ occurring on or after ~~September~~ October 1, ~~2025~~ 2021 shall be settled using the same Settlement Method. (ii) ~~Except for any conversions for which the relevant Conversion Date occurs on or after September~~ Prior to October 1, ~~2025~~2021, the Company shall use the same Settlement Method for all conversions ~~with~~ occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions ~~with~~ that occur on different Conversion Dates. (iii) If, in respect of any Conversion Date (or any conversions of Notes occurring during the period ~~described in~~ beginning on, and including, October 1, 2021 and ending on, and including, the ~~third~~ Scheduled Trading Day immediately ~~succeeding set of parentheses~~preceding the Maturity Date, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the close of business on the ~~second~~ Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions ~~for which the relevant Conversion Date occurs~~ occurring on or after ~~September~~ October 1, ~~2025~~2021, no later than ~~September~~ October 1, ~~2025~~2021). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar ~~Amount per $1,000 principal amount of Notes~~Amount. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount ~~per $1,000 principal amount of Notes~~ in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. By notice to Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 1, 2025, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through a Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 for all Conversion Dates occurring subsequent to delivery of such notice. Not later than three Business Days after providing notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee) of an irrevocable election with respect to the Settlement Method as described in the immediately preceding sentence, the Company shall issue a Current Report on Form 8-K or press release or otherwise provide public disclosure in a manner compliant with Regulation FD announcing that the Company has made such irrevocable election. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its option. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed by the Company as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted ~~cash in~~ an amount in cash equal to the sum of the Daily Conversion Values for each of the 50 40 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 40 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of ~~delivering~~ any fractional ~~Common Share~~share, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of ~~delivering~~ fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~13.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~11.02(h~~13.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common ~~Shares~~ 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 ~~11.02(h~~13.02(h). The Trustee (~~and~~ and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 13 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the ~~Company~~ Paying Agent in respect of such Notes and ~~has~~ not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~12.03~~14.02. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered~~, subject, in the case of Global Notes, to the rules of the applicable Depositary~~. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as ~~set forth~~ provided in Section ~~11.03(b~~13.03(b) and in Section ~~11.07(a)~~13.07, the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the ~~second~~ third Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the ~~second~~ third Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver ~~(if applicable) to the Conversion Agent or~~ to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be ~~entitled, in certificate form or in book-entry format,~~ entitled in satisfaction of the portion of the Company’s Conversion ~~Obligation~~Obligation that consists of shares of Common Stock, and, on or prior to such issuance, the Company shall give the Conversion Agent notice of the number of shares of Common Stock being so issued and the method by which the issuance shall take place. Any required funds due to a converting Holder in connection with a Cash Settlement or Combination Settlement shall be delivered to the Paying Agent and such Holder, or such Holder’s nominee or nominees, in accordance with the procedures set forth in Section 14.03. (d) In case any Note shall be surrendered for partial conversion, the Company (1) in the case of a Global Note, shall cause the principal balance of a Global Note to be adjusted in accordance with the procedures of the Depositary in effect at that time or (2) in the case of a Physical Note, 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 or similar issue or transfer tax due on the issue of any shares of Common ~~Shares~~ Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common ~~Shares~~ Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section ~~11.04~~13.04, no adjustment shall be made for dividends on any ~~Common Shares~~ shares issued upon the conversion of any Note as provided in this Article 1113. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon conversion, a Holder shall not receive any ~~separate~~ cash payment for accrued and unpaid interest, if any, except as set forth below~~, and the Company shall not adjust the Conversion Rate to adjust 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 ~~excluding~~not including, the ~~relevant~~ Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~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 ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts exist at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the certificate for any shares of Common ~~Shares shall be issuable~~ Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Combination Settlement), as the case may be, in each case solely for the purpose of receiving or participating in any dividend, distribution, issuance, share split or combination, tender or exchange offer or any other event that would lead to a Conversion Rate adjustment as described in Section 13.04. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of ~~delivering~~ any fractional share of Common ~~Shares~~ Stock issuable upon conversion based on the Daily VWAP ~~for~~ on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP ~~for~~ on the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of ~~Common Shares~~ shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the ~~relevant~~ applicable Observation Period and any fractional ~~Common Shares~~ shares remaining after such computation shall be paid in cash. (k) Notwithstanding anything to the contrary herein, no Holder shall be entitled to receive shares of Common Stock upon conversion to the extent (but only to the extent) that such receipt would cause such converting Holder to become, directly or indirectly, a “beneficial owner” (within the meaning of Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) of more than 5.0% of the shares of Common Stock outstanding at such time (the “Limitation”). Any purported delivery of shares of Common Stock upon conversion of Notes shall be void and have no effect to the extent (but only to the extent) that such delivery would result in the converting Holder becoming the beneficial owner of more than the Limitation. If any delivery of shares of Common Stock owed to a Holder upon conversion of Notes is not made, in whole or in part, as a result of the Limitation, the Company’s obligation to make such delivery shall not be extinguished and the Company shall deliver such shares as promptly as practicable after any such converting Holder gives notice to the Company that such delivery would not result in it being the beneficial owner of more than 5.0% of the shares of Common Stock outstanding at such time. The Limitation shall no longer apply following the effective date of any Fundamental Change.

Appears in 1 contract

Samples: Indenture (Goldman Sachs BDC, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~14.02, Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~14.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~September~~ March 1, ~~2025~~ 2019 shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs on or after ~~September~~ March 1, ~~2025~~2019, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion Date (or the period described in the third immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the ~~Company, through the Trustee,~~ Company shall deliver such Settlement Notice to converting Holders (or, in the case of Global Notes, by electronic delivery in accordance with the Depositary’s procedures), with a copy to the Trustee and the Conversion Agent (if other than the Trustee), no later than the close of business on the second Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs on or after ~~September~~ March 1, ~~2025~~2019, no later than ~~September~~ March 1, ~~2025~~2019). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. By notice to Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 1, 2025, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through a Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 for all Conversion Dates occurring subsequent to delivery of such notice. Not later than three Business Days after providing notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee) of an irrevocable election with respect to the Settlement Method as described in the immediately preceding sentence, the Company shall issue a Current Report on Form 8-K or press release or otherwise provide public disclosure in a manner compliant with Regulation FD announcing that the Company has made such irrevocable election. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its option. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common ~~Share~~Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~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 pursuant to Section 14.02(e), pay all transfer or similar taxes 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 ~~11.02(h~~14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile 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 shares of Common ~~Shares~~ Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer ~~documents~~ documents, (4) if required pursuant to Section 14.02(e), pay all transfer or similar taxes, and (45) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~11.02(h~~14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~12.03~~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~~, subject, in the case of Global Notes, to the rules of the applicable Depositary~~. (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 ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the ~~second~~ third Business Day immediately following the relevant Conversion Date, if the Company elects Physical ~~Settlement~~Settlement (provided that for any Notes converted after the close of business on the Business Day immediately preceding the Regular Record Date immediately preceding the Maturity Date, the Company shall deliver the shares and cash in lieu of fractional shares on the Maturity Date), or on the ~~second~~ third Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver ~~(if applicable)~~ to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be ~~entitled, in certificate form or in book-entry format,~~ entitled in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company (1) in the case of a Global Note, shall cause the principal balance of a Global Note to be adjusted in accordance with the procedures of the Depositary in effect at that time or (2) in the case of a Physical Note, shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common ~~Shares~~ Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common ~~Shares~~ Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section ~~11.04~~14.04, no adjustment shall be made for dividends on any shares of Common ~~Shares~~ Stock issued upon the conversion of any Note as provided in this Article 1114. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth ~~below, and the Company shall not adjust the Conversion Rate to adjust for any accrued and unpaid interest on the Notes~~below in this Section 14.02(h). The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but ~~excluding~~not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~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 ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the date on which the corresponding ~~Interest Payment Date~~interest payment is made; or (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts ~~exist~~ exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the shares of Common ~~Shares~~ 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 (if the Company elects to satisfy the related Conversion Obligation by Physical ~~Settlement~~Settlement where the Notes are converted on or prior to the close of business on the Business Day immediately preceding the Regular Record Date immediately preceding the Maturity Date), the second Scheduled Trading Day immediately preceding the Maturity Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement where the Notes are converted after the close of business on the Business Day immediately preceding the Regular Record Date immediately preceding the Maturity Date) or the last Trading Day of the relevant Observation Period (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common ~~Shares~~ Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement, provided that for any Notes converted after the close of business on the Business Day immediately preceding the Regular Record Date immediately preceding the Maturity Date, such cash amount shall be based on the Daily VWAP on the second Scheduled Trading Day immediately preceding the Maturity Date) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of ~~Common Shares~~ shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional ~~Common Shares~~ shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Samples: Indenture (Mercadolibre Inc)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~14.02, Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~14.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~September~~ February 1, ~~2025~~ 2022 shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs on or after ~~September~~ February 1, ~~2025~~2022, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion Date (or the period described in the third immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the ~~Company, through the Trustee,~~ Company shall deliver such Settlement Notice to the Conversion Agent and converting Holders no later than the close of business on the second Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs on or after ~~September~~ February 1, ~~2025~~2022, no later than ~~September~~ February 1, ~~2025~~2022). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. By notice to Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 1, 2025, at its option, irrevocably elect to satisfy its Conversion Obligation with respect Notwithstanding anything to the Notes through a Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 for all Conversion Dates occurring subsequent to delivery of such notice. Not later than three Business Days after providing notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee) of an irrevocable election with respect to the Settlement Method as described contrary in the ~~immediately preceding sentence~~foregoing, the Company shall ~~issue a Current Report on Form 8-K or press release or otherwise provide public disclosure~~ be permitted to elect Physical Settlement in ~~a manner compliant~~ any Certain Distributions Notification and any such election would be applicable to conversions with ~~Regulation FD announcing~~ Conversion Dates that occur after delivery to the ~~Company has made such irrevocable election. For~~ Holders of the ~~avoidance of doubt, such an irrevocable election, if made, will be effective without~~ Certain Distributions Notification until the ~~need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its option~~Certain Distributions Conversion Period End Date. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion ~~Date~~Date (plus cash in lieu of any fractional share of Common Stock issuable upon conversion); (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 40 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 40 consecutive Trading Days during the related Observation ~~Period~~Period (plus cash in lieu of any fractional share of Common Stock issuable upon conversion). (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common ~~Share~~Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time and, if required, pay funds equal to the interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~11.02(h~~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 an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common ~~Shares~~ 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 ~~11.02(h~~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 11 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~12.03~~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~~, subject, in the case of Global Notes, to the rules of the applicable Depositary~~. (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 ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the ~~second~~ third Business Day immediately following the relevant Conversion Date, if the Company elects to satisfy its Conversion Obligation through Physical Settlement, or on the ~~second~~ third Business Day immediately following the last Trading Day of the Observation Period, in if the ~~case of~~ Company elects to satisfy its Conversion Obligation through any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to a converting ~~Holders~~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 shares of Common ~~Shares~~ Stock to which such Holder shall be entitled, in ~~certificate form or in~~ book-entry ~~format~~format through the Depositary, in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company (1) in the case of a Global Note, shall cause the principal balance of a Global Note to be adjusted in accordance with the procedures of the Depositary in effect at that time or (2) in the case of a Physical Note, shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common ~~Shares~~ Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common ~~Shares~~ Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section ~~11.04~~14.04, no adjustment shall be made for dividends on any shares of Common ~~Shares~~ Stock issued upon the conversion of any Note as provided in this Article 1114. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below~~, and the Company shall not adjust the Conversion Rate to adjust 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 ~~excluding~~not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~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 ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date but prior to the open of business on the immediately following Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on ~~the corresponding~~ such Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so ~~converted~~converted on the corresponding Interest Payment Date (regardless of whether the converting Holder was the Holder of record on the corresponding Regular Record Date); provided that no such payment shall be required (1) for conversions following the close of business on the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts ~~exist~~ exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date and any Fundamental Change Repurchase Date described in clause (2) above shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted and/or repurchased, as applicable, following such Regular Record Date. (i) The Person in whose name the shares of Common ~~Shares~~ 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 (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common ~~Shares~~ Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of ~~Common Shares~~ shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional ~~Common Shares~~ shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Samples: Indenture (Hubspot Inc)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~12.02, Section ~~11.03(b~~12.03(b) and Section ~~11.07(a~~12.07(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of ~~delivering~~ any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 12.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of ~~delivering~~ any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 12.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~12.02. (i) All conversions ~~for which the relevant Conversion Date occurs~~ occurring on or after ~~September 1, 2025~~ the 25th Scheduled Trading Day immediately preceding the Maturity Date shall be settled using the same Settlement Method. (ii) ~~Except for any conversions for which~~ Prior to the ~~relevant Conversion Date occurs on or after September 1, 2025~~25th Scheduled Trading Day immediately preceding the Maturity Date, the Company shall use the same Settlement Method for all conversions ~~with~~ occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions ~~with~~ that occur on different Conversion Dates. (iii) If, in respect of any Conversion Date (or any conversions of Notes occurring during the period ~~described in~~ beginning on, and including, the ~~third~~ 25th Scheduled Trading Day immediately ~~succeeding set of parentheses~~preceding the Maturity Date and ending on, and including, the Scheduled Trading Day immediately preceding the Maturity Date, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the ~~Company, through the Trustee,~~ Company shall deliver such Settlement Notice to converting Holders (with a copy to the Trustee and Conversion Agent (if other than the Trustee)) no later than the close of business on the ~~second~~ Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions ~~for which the relevant Conversion Date occurs~~ occurring on or after ~~September 1, 2025~~the 25th Scheduled Trading Day immediately preceding the Maturity Date, no later than ~~September 1, 2025~~such date). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall ~~no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall~~ be deemed to have elected ~~Combination~~ Physical Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar ~~Amount per $1,000 principal amount of Notes~~Amount. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount ~~per $1,000 principal amount of Notes~~ in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. By notice to Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 1, 2025, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through a Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 for all Conversion Dates occurring subsequent to delivery of such notice. Not later than three Business Days after providing notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee) of an irrevocable election with respect to the Settlement Method as described in the immediately preceding sentence, the Company shall issue a Current Report on Form 8-K or press release or otherwise provide public disclosure in a manner compliant with Regulation FD announcing that the Company has made such irrevocable election. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its option. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed by the Company as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted ~~cash in~~ an amount in cash equal to the sum of the Daily Conversion Values for each of the 50 20 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 20 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of ~~delivering~~ any fractional ~~Common Share~~share, the Company shall notify in writing the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of ~~delivering~~ fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~12.02(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 ~~11.02(h~~12.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile thereof) (a “Notice of Conversion”) at the ~~office of the Conversion Agent~~ Corporate Trust Office and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common ~~Shares~~ 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 ~~11.02(h~~12.02(h). The Trustee (~~and~~ or, if different, the Conversion Agent) shall notify the Company in writing of any conversion pursuant to this Article 11 12 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the ~~Company~~ Paying Agent in respect of such Notes and ~~has~~ not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~12.03~~13.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered~~, subject, in the case of Global Notes, to the rules of the applicable Depositary~~. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as ~~set forth~~ provided in Section ~~11.03(b~~12.03(b) and in Section ~~11.07(a)~~12.07, the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the ~~second~~ third Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the ~~second~~ third Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver ~~(if applicable) to the Conversion Agent or~~ to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be ~~entitled, in certificate form or in book-entry format,~~ entitled in satisfaction of the portion of the Company’s Conversion ~~Obligation~~Obligation that consists of shares of Common Stock, and, on or prior to such issuance, the Company shall give the Conversion Agent notice of the number of shares of Common Stock being so issued and the method by which the issuance shall take place. Any required funds due to a converting Holder in connection with a Cash Settlement or Combination Settlement shall be delivered to the Paying Agent in accordance with the procedures set forth in Section 8.05. (d) In case any Note shall be surrendered for partial conversion, the Company (1) in the case of a Global Note, shall cause the principal balance of a Global Note to be adjusted in accordance with the procedures of the Depositary in effect at that time or (2) in the case of a Physical Note, 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 by the converting Holder of a sum sufficient to cover any ~~documentary, stamp or similar issue or~~ transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common ~~Shares~~ Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common ~~Shares~~ Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section ~~11.04~~12.04, no adjustment shall be made for dividends on any ~~Common Shares~~ shares issued upon the conversion of any ~~Note as provided in this Article 11~~Note. (g) Upon the conversion of an interest in a Global Note, the ~~Trustee,~~ Trustee or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below~~, and the Company shall not adjust the Conversion Rate to adjust 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 ~~excluding~~not including, the ~~relevant~~ Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~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 ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts exist at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the certificate for any shares of Common ~~Shares shall be issuable~~ Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Combination Settlement), as the case may be, in each case solely for the purpose of receiving or participating in any dividend, distribution, issuance, share split or combination, tender or exchange offer or any other event that would lead to a Conversion Rate adjustment as described in Section 12.04. 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 share of Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of ~~delivering~~ any fractional share of Common ~~Shares~~ Stock issuable upon conversion based on the Daily VWAP ~~for~~ on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP ~~for~~ on the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of ~~Common Shares~~ shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the ~~relevant~~ applicable Observation Period and any fractional ~~Common Shares~~ shares remaining after such computation shall be paid in cash. (k) Notwithstanding anything to the contrary herein, no Holder shall be entitled to receive shares of Common Stock upon conversion to the extent (but only to the extent) that following such receipt such converting Holder would be, directly or indirectly, a “beneficial owner” (within the meaning of Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) of more than 5.0% of the shares of Common Stock outstanding at such time (the “Limitation”). Any purported delivery of shares of Common Stock upon conversion of Notes shall be void and have no effect to the extent (but only to the extent) that such delivery would result in the converting Holder becoming the beneficial owner of more than the Limitation. If any delivery of shares of Common Stock owed to a Holder upon conversion of Notes is not made, in whole or in part, as a result of the Limitation, the Company’s obligation to make such delivery shall not be extinguished and the Company shall deliver such shares as promptly as practicable after any such converting Holder gives notice to the Company that following such delivery such converting holder would not be the beneficial owner of more than 5.0% of the shares of Common Stock outstanding at such time. The Limitation shall no longer apply following the effective date of any Fundamental Change. For the avoidance of doubt, neither the Trustee nor Conversion Agent shall have any duty to monitor for or determine the applicability of the Limitation.

Appears in 1 contract

Samples: First Supplemental Indenture (BlackRock Capital Investment Corp)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this ~~Section 11.02~~‎Section 14.02, ~~Section 11.03(b~~‎Section 14.03(b) and ~~Section 11.07(a~~‎Section 14.07(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j‎(j) of this ~~Section 11.02~~ ‎Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j‎(j) of this ~~Section 11.02~~ ‎Section 14.02 (“Combination Settlement”), at its election, as set forth in this ~~Section 11.02~~‎Section 14.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~September 1~~October 15, ~~2025~~ 2021 shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs ~~on or~~ after ~~September 1~~October 15, ~~2025~~2021, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion Date (or one of the ~~period~~ periods described in the third immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the ~~Company, through the Trustee,~~ Company shall deliver such Settlement Notice to converting ~~Holders~~ Holders, with a copy to the Trustee and the Conversion Agent (if other than the Trustee), no later than the close of business on the ~~second~~ Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs on or after ~~September 1~~October 15, ~~2025~~2021, no later than ~~September 1~~the close of business on the Scheduled Trading Day immediately preceding October 15, ~~2025~~2021). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. By notice to Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 1, 2025, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through a Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 for all Conversion Dates occurring subsequent to delivery of such notice. Not later than three Business Days after providing notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee) of an irrevocable election with respect to the Settlement Method as described in the immediately preceding sentence, the Company shall issue a Current Report on Form 8-K or press release or otherwise provide public disclosure in a manner compliant with Regulation FD announcing that the Company has made such irrevocable election. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its option. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 25 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 25 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common ~~Share~~Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to ~~Section 11.02(e~~‎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 11.02(h~~‎Section 14.02(h) and (ii) in the case of a Physical Note (1) ~~complete,~~ complete and manually sign ~~and deliver~~ an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile 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 shares of Common ~~Shares~~ Stock to be delivered upon settlement of the Conversion Obligation to be ~~registered~~registered and deliver such Notice of Conversion to the Conversion Agent, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in ~~Section 11.02(h~~‎Section 14.02(h). The Trustee (~~and~~ and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this ~~Article 11~~ ‎Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and ~~has~~ not validly withdrawn such Fundamental Change Repurchase Notice with respect to such Notes in accordance with ~~Section 12.03~~‎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~~, subject, in the case of Global Notes, to the rules of the applicable Depositary~~. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b‎(b) above. Except as set forth in ~~Section 11.03(b~~‎‎Section 14.03(b) and ~~Section 11.07(a~~‎Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the ~~second~~ third Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, provided, if the Conversion Date is after the Regular Record Date for the last Interest Payment Date, such payment or delivery will occur on the Maturity Date, or on the ~~second~~ third Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver ~~(if applicable)~~ to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be ~~entitled, in certificate form or in book-entry format,~~ entitled in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company (1) in the case of a Global Note, shall cause the principal balance of a Global Note to be adjusted in accordance with the procedures of the Depositary in effect at that time or (2) in the case of a Physical Note, 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~~Company, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax ~~or similar governmental charge required by law or~~ that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common ~~Shares~~ Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common ~~Shares~~ Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in ~~Section 11.04~~‎Section 14.04, no adjustment shall be made for dividends on any ~~Common Shares~~ shares issued upon the conversion of any Note as provided in this Article 1114. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below~~, and the Company shall not adjust the Conversion Rate to adjust 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 excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately ~~following~~ succeeding the ~~corresponding Interest Payment Date~~date such interest is paid; or (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts ~~exist~~ exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the certificate for any shares of Common ~~Shares shall be issuable~~ Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common ~~Shares~~ Stock upon conversion of the Notes and shall instead ~~pay~~ pay, at the time it delivers the Settlement Amount, cash in lieu of ~~delivering~~ any fractional share of Common ~~Shares~~ Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of ~~Common Shares~~ shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the ~~relevant~~ applicable Observation Period and any fractional ~~Common Shares~~ shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Samples: Indenture (Cypress Semiconductor Corp /De/)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~14.02, Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~14.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~September~~ November 1, ~~2025~~ 2022 shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs on or after ~~September~~ November 1, ~~2025~~2022, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion Date (or the period described in the third immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the close of business on the ~~second~~ Trading Day immediately following the ~~relevant~~ related Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs on or after ~~September~~ November 1, ~~2025~~2022, no later than ~~September~~ November 1, ~~2025~~2022). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to any conversion on the relevant Conversion Date or during the relevant period, and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. By notice to ~~Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee)~~Holders, the Company may, prior to ~~September~~ November 1, ~~2025~~2022, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through a Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 for all Conversion Dates occurring subsequent to delivery of such notice. Not later than three Business Days after providing notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee) of an irrevocable election with respect to the Settlement Method as described in the immediately preceding sentence, the Company shall issue a Current Report on Form 8-K or press release or otherwise provide public disclosure in a manner compliant with Regulation FD announcing that the Company has made such irrevocable election. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its option. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 40 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 40 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common ~~Share~~Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to ~~interest~~ any Special Interest payable on the next Special Interest Payment Date to which such Holder is not entitled as set forth in Section ~~11.02(h~~14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a ~~facsimile~~ 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 shares of Common ~~Shares~~ 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~~ any Special Interest payable on the next Special Interest Payment Date to which such Holder is not entitled as set forth in Section ~~11.02(h~~14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~12.03~~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~~, subject, in the case of Global Notes, to the rules of the applicable Depositary~~. (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 ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical ~~Settlement~~Settlement (provided that, with respect to any conversion following February 15, 2023 where Physical Settlement applies, the Company shall settle any such conversion on the Maturity Date), or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to a converting ~~Holders~~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 shares of Common ~~Shares~~ Stock to which such Holder shall be entitled, in ~~certificate form or in~~ book-entry ~~format~~format through the Depositary, in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company (1) in the case of a Global Note, shall cause the principal balance of a Global Note to be adjusted in accordance with the procedures of the Depositary in effect at that time or (2) in the case of a Physical Note, shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common ~~Shares~~ Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common ~~Shares~~ Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section ~~11.04~~14.04, no adjustment shall be made for dividends on any shares of Common ~~Shares~~ Stock issued upon the conversion of any Note as provided in this Article 1114. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below~~, and the Company shall not adjust the Conversion Rate to adjust 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 ~~excluding~~not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~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 ~~Shares~~Stock, any accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a ~~Regular~~ Special Interest Record Date, Holders of such Notes as of the close of business on such ~~Regular~~ Special Interest Record Date will receive the full amount of any interest payable on such Notes on the corresponding Special Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any ~~Regular~~ Special Interest Record Date to the open of business on the immediately following Special Interest Payment Date must be accompanied by funds equal to the amount of any interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following ~~the Regular Record Date immediately preceding~~ February 15, 2023, if Special Interest is payable on the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a ~~Regular~~ Special Interest Record Date and on or prior to the Business Day immediately following the corresponding Special Interest Payment Date; or (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts ~~exist~~ exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on February 15, 2023 (if and to the ~~Regular Record Date immediately preceding~~ extent Special Interest is payable on the Maturity ~~Date~~ Date) shall receive the full interest payment due on the Maturity Date in cash regardless of whether their Notes have been converted following ~~such Regular Record Date~~February 15, 2023. (i) The Person in whose name the shares of Common ~~Shares~~ 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 (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common ~~Shares~~ Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of ~~Common Shares~~ shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional ~~Common Shares~~ shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Samples: Indenture (Etsy Inc)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~13.02, Section ~~11.03(b~~13.03(b) and Section ~~11.07(a~~13.07(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, ~~together with cash~~together, if applicable, with cash in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with ~~subsection (j~~Section 13.02(j) ~~of this Section 11.02~~ (“Physical Settlement”) ), or a combination of cash and shares of Common ~~Shares~~Stock, ~~together with cash~~together, if applicable, with cash in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with ~~subsection (j~~Section 13.02(j) ~~of this Section 11.02~~ (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~13.02. (i) All conversions for which the relevant Conversion Date occurs during a Redemption Period shall be settled using the same Settlement Method, and all conversions for which the relevant Conversion Date occurs on or after ~~September~~ April 1, ~~2025~~ 2023 shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs during a Redemption Period and any conversions for which the relevant Conversion Date occurs on or after ~~September~~ April 1, ~~2025~~2023, and except to the extent the Company elects Physical Settlement to apply pursuant to Section 13.01(b)(ii), the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion Date (or one of the ~~period~~ periods described in the third immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the ~~Company, through the Trustee,~~ Company shall deliver such Settlement Notice to converting Holders no later than the close of business on the ~~second~~ Scheduled Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions (x) of any Notes for which the relevant Conversion Date occurs (A) during a Redemption Period, in the applicable Redemption Notice or (B) on or after ~~September~~ April 1, ~~2025~~2023, no later than ~~September~~ the close of business on the Business Day immediately preceding April 1, ~~2025~~2023 or (y) for which the Company has irrevocably elected Physical Settlement pursuant to Section 13.01(b)(ii), in the related notice described therein). If the Company does not elect a Settlement Method with respect to any conversion prior to the deadline set forth in the immediately preceding sentence, ~~the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and~~ then the Company shall be deemed to have elected ~~Combination~~ the Default Settlement Method in respect of ~~its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000~~such conversion. Such Settlement ~~Notice~~ Notice, if provided, shall specify the relevant Settlement Method ~~and~~ and, in the case ~~of an election~~ of Combination Settlement, the ~~relevant Settlement Notice shall indicate the~~ applicable Specified Dollar ~~Amount per $1,000 principal amount of Notes~~Amount. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. By notice to Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 1, 2025, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through a Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 for all Conversion Dates occurring subsequent to delivery of such notice. Not later than three Business Days after providing notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee) of an irrevocable election with respect to the Settlement Method as described in the immediately preceding sentence, the Company shall issue a Current Report on Form 8-K or press release or otherwise provide public disclosure in a manner compliant with Regulation FD announcing that the Company has made such irrevocable election. For the avoidance of doubt, ~~such an irrevocable election, if made, will be effective without~~ the ~~need~~ Company’s failure to ~~amend~~ so select a Settlement Method or Specified Dollar Amount when so permitted shall not constitute a Default or Event of Default under this ~~Second Supplemental~~ Indenture or the Notes~~, including pursuant~~ . By notice to ~~Section 9.02(i). However~~the Holders, the Company ~~may~~may change the Default Settlement Method to any permitted Settlement Method, ~~nonetheless~~except it may not change the Default Settlement Method during any Redemption Period (in respect of Notes converted with a Conversion Date occurring during such Redemption Period) or on or after April 1, ~~choose to execute such an amendment at its option~~2023 (in respect of Notes converted with a Conversion Date that occurs on or after April 1, 2023). (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall ~~be computed as follows: (A) if~~ have the ~~Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder~~ following meaning in respect of each $1,000 principal amount of Notes being ~~converted~~ converted: (A) if Physical Settlement applies to such conversion, a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion ~~Date~~Date for such conversion; (B) if ~~the Company elects~~ Cash Settlement applies to ~~satisfy its Conversion Obligation in respect of~~ such ~~conversion by Cash Settlement~~conversion, ~~the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted~~ cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 30 consecutive VWAP Trading Days during the related Observation Period; and (C) if ~~the Company elects (or is deemed~~ Combination Settlement applies to ~~have elected) to satisfy its Conversion Obligation in respect of~~ such ~~conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted~~conversion, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 30 consecutive VWAP Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company ~~promptly~~ as soon as reasonably practicable following the last day of the Observation Period. ~~Promptly after~~ Following such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common ~~Share~~Stock, if any, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the ~~Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional Common Shares~~same. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~13.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time ~~and, if required,~~ and 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 ~~11.02(h~~13.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a ~~facsimile~~ facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedure of the Depository or a notice set forth in the Form of Notice of Conversion) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common ~~Shares~~ 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~~ the Holder is not entitled as set forth in Section ~~11.02(h~~13.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 13 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~12.03~~14.02. If Subject to any procedures or requirements of the applicable Depositary in the case of any Global Note, 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~~, subject, in the case of Global Notes, to the rules of the applicable Depositary~~. (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 ~~11.03(b~~13.03(b) and Section ~~11.07(a~~13.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if ~~the Company elects~~ Physical ~~Settlement~~Settlement applies, or on the second Business Day immediately following the last VWAP Trading Day of the Observation Period, ~~in the case of~~ if any other Settlement ~~Method~~Method applies; provided, however, that the Company shall settle on the Maturity Date (or, if the Maturity Date is not a Business Day, the immediately following Business Day) any conversions to which Physical Settlement applies and whose Conversion Date occurs on or after September 15, 2023. If any shares of Common ~~Shares~~ Stock are due to a converting ~~Holders~~Holder, the Company shall issue and deliver (or otherwise cause to be ~~issued, and deliver (if applicable~~delivered) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be entitled, in ~~certificate form or in~~ book-entry ~~format~~format through the Depositary, in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company (1) in the case of a Global Note, shall cause the principal balance of a Global Note to be adjusted in accordance with the procedures of the Depositary in effect at that time or (2) in the case of a Physical Note, shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common ~~Shares~~ Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common ~~Shares~~ Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section ~~11.04~~13.04, no adjustment shall be made for dividends on any shares of Common ~~Shares~~ Stock issued upon the conversion of any Note as provided in this Article 1113. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth ~~below~~below in this Section 13.02(h), and the Company ~~shall~~ will not adjust the Conversion Rate ~~to adjust~~ for any accrued and unpaid interest on ~~the~~ any converted Notes. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but ~~excluding~~not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~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 ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so converted; ~~provided~~ provided, however, that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately following the corresponding Interest Payment Date; or (34) to the extent of any Defaulted Amounts, if any Defaulted Amounts ~~exist~~ exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record as of the close of business on the Regular Record Date immediately preceding the Maturity Date, or a Fundamental Change Repurchase Date or Redemption Date referred to above, shall receive the full interest payment due on the ~~Maturity~~ corresponding Interest Payment Date in cash regardless of whether their Notes have been converted following such Regular Record Date, and the converting Holder shall not be required to make a corresponding payment. (i) The Person in whose name ~~the~~ any shares of Common ~~Shares~~ Stock shall be issuable upon conversion shall be treated as a stockholder of record of such shares as of the close of business on the relevant Conversion Date (if ~~the Company elects~~ Physical Settlement applies to ~~satisfy the related Conversion Obligation by Physical Settlement~~such conversion) or as of the close of business on the last VWAP Trading Day of the relevant Observation Period (if ~~the Company elects (or is deemed~~ Combination Settlement applies to ~~have elected) to satisfy the related Conversion Obligation by Combination Settlement~~such conversion), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common ~~Shares~~ Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (or, if such conversion date is not a VWAP Trading Day, the immediately preceding VWAP Trading Day), in the case of Physical Settlement) , or based on the Daily VWAP for the last VWAP Trading Day of the relevant Observation ~~Period (~~Period, in the case of Combination Settlement). ~~For~~ Subject to any procedures or requirements of the applicable Depositary in the case of any Global Note, for each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of ~~Common Shares~~ shares that shall be ~~issued~~ deliverable upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional ~~Common Shares~~ shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Samples: Indenture (Tilray, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~13.02, Section ~~11.03(b~~13.03(b) and Section ~~11.07(a~~13.07(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of ~~delivering~~ any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 13.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of ~~delivering~~ any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 13.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~13.02. (i) All conversions ~~for which the relevant Conversion Date occurs~~ occurring on or after ~~September 1~~June 15, ~~2025~~ 2019 shall be settled using the same Settlement Method. (ii) ~~Except for any conversions for which the relevant Conversion Date occurs on or after September 1~~Prior to June 15, ~~2025~~2019, the Company shall use the same Settlement Method for all conversions ~~with~~ occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions ~~with~~ that occur on different Conversion Dates. (iii) If, in respect of any Conversion Date (or any conversions of Notes occurring during the period ~~described in~~ beginning on, and including, June 15, 2019 and ending on, and including, the ~~third~~ Scheduled Trading Day immediately ~~succeeding set of parentheses~~preceding the Maturity Date, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the close of business on the ~~second~~ Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions ~~for which the relevant Conversion Date occurs~~ occurring on or after ~~September 1~~June 15, ~~2025~~2019, no later than ~~September 1~~June 15, ~~2025~~2019). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar ~~Amount per $1,000 principal amount of Notes~~Amount. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount ~~per $1,000 principal amount of Notes~~ in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. By notice to Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 1, 2025, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through a Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 for all Conversion Dates occurring subsequent to delivery of such notice. Not later than three Business Days after providing notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee) of an irrevocable election with respect to the Settlement Method as described in the immediately preceding sentence, the Company shall issue a Current Report on Form 8-K or press release or otherwise provide public disclosure in a manner compliant with Regulation FD announcing that the Company has made such irrevocable election. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its option. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed by the Company as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted ~~cash in~~ an amount in cash equal to the sum of the Daily Conversion Values for each of the 50 15 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 15 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of ~~delivering~~ any fractional ~~Common Share~~share, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of ~~delivering~~ fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~13.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~11.02(h~~13.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common ~~Shares~~ 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 all taxes or duties, if any, and (5) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~11.02(h~~13.02(h). The Trustee (~~and~~ and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 13 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such ~~Holder~~ Xxxxxx has also delivered a Fundamental Change Repurchase Notice to the ~~Company~~ Paying Agent in respect of such Notes and ~~has~~ not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~12.03~~14.02. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered~~, subject, in the case of Global Notes, to the rules of the applicable Depositary~~. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as ~~set forth~~ provided in Section ~~11.03(b~~13.03(b) and in Section ~~11.07(a)~~13.07, the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the ~~second~~ third Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the ~~second~~ third Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver ~~(if applicable) to the Conversion Agent or~~ to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be ~~entitled, in certificate form or in book-entry format,~~ entitled in satisfaction of the portion of the Company’s Conversion ~~Obligation~~Obligation that consists of shares of Common Stock, and, on or prior to such issuance, the Company shall give the Conversion Agent notice of the number of shares of Common Stock being so issued and the method by which the issuance shall take place. Any required funds due to a converting Holder in connection with a Cash Settlement or Combination Settlement shall be delivered to the Paying Agent in accordance with the procedures set forth in Section 14.03. (d) In case any Note shall be surrendered for partial conversion, the Company (1) in the case of a Global Note, shall cause the principal balance of a Global Note to be adjusted in accordance with the procedures of the Depositary in effect at that time or (2) in the case of a Physical Note, 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 or similar issue or transfer tax due on the issue of any shares of Common ~~Shares~~ Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common ~~Shares~~ Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section ~~11.04~~13.04, no adjustment shall be made for dividends on any ~~Common Shares~~ shares issued upon the conversion of any Note as provided in this Article 1114. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below~~, and the Company shall not adjust the Conversion Rate to adjust 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 ~~excluding~~not including, the ~~relevant~~ Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~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 ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts exist at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the certificate for any shares of Common ~~Shares shall be issuable~~ Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Combination Settlement), as the case may be, in each case solely for the purpose of receiving or participating in any dividend, distribution, issuance, share split or combination, tender or exchange offer or any other event that would lead to a Conversion Rate adjustment as described in Section 13.04. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of ~~delivering~~ any fractional share of Common ~~Shares~~ Stock issuable upon conversion based on the Daily VWAP ~~for~~ on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP ~~for~~ on the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of ~~Common Shares~~ shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the ~~relevant~~ applicable Observation Period and any fractional ~~Common Shares~~ shares remaining after such computation shall be paid in cash. (k) Notwithstanding anything to the contrary herein, no Holder shall be entitled to receive shares of Common Stock upon conversion to the extent (but only to the extent) that such receipt would cause such converting Holder to become, directly or indirectly, a “beneficial owner” (within the meaning of Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) of more than 5.0% of the shares of Common Stock outstanding at such time (the “Limitation”). Any purported delivery of shares of Common Stock upon conversion of Notes shall be void and have no effect to the extent (but only to the extent) that such delivery would result in the converting Holder becoming the beneficial owner of more than the Limitation. If any delivery of shares of Common Stock owed to a Holder upon conversion of Notes is not made, in whole or in part, as a result of the Limitation, the Company’s obligation to make such delivery shall not be extinguished and the Company shall deliver such shares as promptly as practicable after any such converting Holder gives notice to the Company that such delivery would not result in it being the beneficial owner of more than 5.0% of the shares of Common Stock outstanding at such time. The Limitation shall no longer apply following the effective date of any Fundamental Change.

Appears in 1 contract

Samples: Indenture (TCP Capital Corp.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~14.02, Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), upon conversion of any Note, the Company shall ~~pay~~ satisfy its Conversion Obligation by paying or ~~deliver~~delivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~14.02. (i) All conversions for which the relevant Conversion Date occurs (x) on or after ~~September 1~~October 15, ~~2025~~ 2022 or (y) during a Redemption Period shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs during a Redemption Period and any conversions for which the relevant Conversion Date occurs on or after ~~September 1~~October 15, ~~2025~~2022, the Company shall use the same Settlement Method for all conversions ~~with~~ occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions ~~with~~ that occur on different Conversion Dates. (iii) If, in respect of any Conversion Date (or ~~the period described in the third immediately succeeding set of parentheses~~any conversions occurring (x) during a Redemption Period or (y) on or after October 15, 2022, as the case may be), the Company elects to a Settlement Method, the Company shall deliver a written notice (the “Settlement Notice”) of the ~~relevant~~ Settlement Method so elected in respect of such Conversion Date (or such period, as the case may be)) to converting Holders, the ~~Company, through~~ Trustee and the Conversion Agent (if other than the Trustee~~, shall deliver such Settlement Notice to converting Holders~~ ) no later than the close of business on the ~~second~~ Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions ~~for which the relevant Conversion Date occurs~~ occurring (x) during a Redemption Period, in such Redemption Notice, or (y) on or after ~~September 1~~October 15, ~~2025~~2022, no later than ~~September 1~~the close of business on the Business Day immediately preceding October 15, ~~2025~~2022). If the Company does not timely elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to any conversion on such Conversion Date or during such period and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. By notice to Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 1, 2025, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through a Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 for all Conversion Dates occurring subsequent to delivery of such notice. Not later than three Business Days after providing notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee) of an irrevocable election with respect to the Settlement Method as described in the immediately preceding sentence, the Company shall issue a Current Report on Form 8-K or press release or otherwise provide public disclosure in a manner compliant with Regulation FD announcing that the Company has made such irrevocable election. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its option. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting ~~Holder~~ Holder, in respect of each $1,000 principal amount of Notes being ~~converted~~ converted, a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting ~~Holder~~ Holder, in respect of each $1,000 principal amount of Notes being ~~converted~~ converted, cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 40 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 40 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common ~~Share~~Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~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 for converting a beneficial interest in a Global Note and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~11.02(h~~14.02(h) (and, if required, pay all transfer or similar taxes, if any, as set forth in Section 14.02(d) and Section 14.02(e)) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a ~~facsimile~~ 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 shares of Common ~~Shares~~ 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 ~~11.02(h~~14.02(h). The Trustee (~~and~~ and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 14 on the Conversion Date for such conversion. No ~~Notice of Conversion with respect to any~~ Notes may be surrendered for conversion by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~12.03~~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~~, subject, in the case of Global Notes, to the rules of the applicable Depositary~~. (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 ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical ~~Settlement~~Settlement (provided that, with respect to any Conversion Date for which Physical Settlement is applicable occurring after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Company will settle any such conversion on the Maturity Date), or on the second Business Day immediately following the last Trading Day of the relevant Observation Period, in the case of any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver ~~(if applicable) to the Conversion Agent or~~ to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be ~~entitled, in certificate form or in book-entry format,~~ entitled in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company (1) in the case of a Global Note, shall cause the principal balance of a Global Note to be adjusted in accordance with the procedures of the Depositary in effect at that time or (2) in the case of a Physical Note, shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on ~~the issue~~ any issuance of any shares of Common ~~Shares~~ Stock upon conversion, unless the tax is due because the Holder requests any such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common ~~Shares~~ Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section ~~11.04~~14.04, no adjustment shall be made for dividends on any shares of Common ~~Shares~~ Stock issued upon the conversion of any Note as provided in this Article 1114. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below, and the ~~Company~~ Conversion Rate shall not ~~adjust the Conversion Rate to adjust~~ be adjusted for any accrued and unpaid interest on ~~the~~ any converted Notes. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the close of business on the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading Day immediately following the corresponding Interest Payment Date; or (34) to the extent of any ~~Defaulted Amounts~~overdue interest, if any ~~Defaulted Amounts exist~~ overdue interest exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the certificate for any shares of Common ~~Shares shall be issuable~~ Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common ~~Shares~~ Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of ~~Common Shares~~ shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional ~~Common Shares~~ shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Samples: Indenture (Pure Storage, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~14.02, Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~14.02. (i) All conversions ~~for which the relevant Conversion Date occurs~~ occurring on or after ~~September~~ December 1, ~~2025~~ 2023 shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs on or after ~~September~~ December 1, ~~2025~~2023, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion Date (or one of the ~~period~~ periods described in the third immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the ~~Company, through the Trustee,~~ Company shall deliver such Settlement Notice to converting ~~Holders~~ Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the ~~second~~ Scheduled Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions ~~for which the relevant Conversion Date occurs~~ occurring on or after ~~September~~ December 1, ~~2025~~2023, no later than ~~September~~ the close of business on December 1, ~~2025~~2023). If the Company does not timely elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement for such conversion or during such period and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. By notice to Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 1, 2025, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through a Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 for all Conversion Dates occurring subsequent to delivery of such notice. Not later than three Business Days after providing notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee) of an irrevocable election with respect to the Settlement Method as described in the immediately preceding sentence, the Company shall issue a Current Report on Form 8-K or press release or otherwise provide public disclosure in a manner compliant with Regulation FD announcing that the Company has made such irrevocable election. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its option. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 40 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination 55 Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 40 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common ~~Share~~Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~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 any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~11.02(h~~14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a ~~facsimile~~ 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 shares of Common ~~Shares~~ 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 ~~11.02(h~~14.02(h). The Trustee (~~and~~ and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 14 on the Conversion Date for such conversion. No ~~Notice of Conversion with respect to any~~ Notes may be surrendered for conversion by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~12.03~~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~~, subject, in the case of Global Notes, to the rules of the applicable Depositary~~. (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 ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical ~~Settlement~~Settlement (provided that, with 56 respect to any Conversion Date following the Regular Record Date immediately preceding the Maturity Date where Physical Settlement applies to the related conversion, the Company shall settle any such conversion on the Maturity Date), or on the second Business Day immediately following the last Trading Day of the relevant Observation Period, in the case of any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver ~~(if applicable)~~ to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be ~~entitled, in certificate form or in book-entry format,~~ entitled in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company (1) in the case of a Global Note, shall cause the principal balance of a Global Note to be adjusted in accordance with the procedures of the Depositary in effect at that time or (2) in the case of a Physical Note, shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common ~~Shares~~ Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common ~~Shares~~ Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section ~~11.04~~14.04, no adjustment shall be made for dividends on any shares of Common ~~Shares~~ Stock issued upon the conversion of any Note as provided in this Article 1114. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid ~~interest, if any,~~ interest except as set forth below~~, and the Company shall not adjust the Conversion Rate to adjust 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,~~ interest to, but excluding, the relevant Conversion Date. As a result, accrued and unpaid ~~interest, if any,~~ interest to, but excluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common ~~Shares~~Stock, any 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 57 Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately ~~following~~ succeeding the corresponding Interest Payment Date; or (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts ~~exist~~ exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the certificate for any shares of Common ~~Shares shall be issuable~~ Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common ~~Shares~~ Stock issuable upon conversion based on the Daily VWAP ~~for~~ on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP ~~for~~ on the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of ~~Common Shares~~ shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional ~~Common Shares~~ shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Samples: Indenture (Pluralsight, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~13.02, Section ~~11.03(b~~13.03(b) and Section ~~11.07(a~~13.07(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 13.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 13.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~13.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~September 1~~March 15, ~~2025~~ 2019 shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs on or after ~~September 1~~March 15, ~~2025~~2019, the Company shall use the same Settlement Method for all conversions ~~with~~ occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion Date (or the period described in the third immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the close of business on the ~~second~~ Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs on or after ~~September 1~~March 15, ~~2025~~2019, no later than ~~September 1~~the close of business on Scheduled Trading Day immediately preceding March 15, ~~2025~~2019). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to such conversion or during such period and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. By notice to Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 1, 2025, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through a Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 for all Conversion Dates occurring subsequent to delivery of such notice. Not later than three Business Days after providing notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee) of an irrevocable election with respect to the Settlement Method as described in the immediately preceding sentence, the Company shall issue a Current Report on Form 8-K or press release or otherwise provide public disclosure in a manner compliant with Regulation FD announcing that the Company has made such irrevocable election. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its option. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 30 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 30 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common ~~Share~~Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (vi) At any time prior to March 15, 2019, the Company may irrevocably elect Cash Settlement to satisfy its Conversion Obligation in respect of Notes to be converted after the date of such election, or irrevocably elect Combination Settlement and a Specified Dollar Amount (which amount shall be at least $1,000 per $1,000 principal amount of Notes) to satisfy its Conversion Obligation in respect of Notes to be converted after the date of such election. Upon making any election pursuant to this Section 13.02(a)(vi), the Company shall promptly (A) use its reasonable efforts to post information relating to such election on its website or otherwise publicly disclose such information, and (B) give written notice of such election to the Holders of the Notes. (b) Subject to Section ~~11.02(e~~13.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~11.02(h~~13.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common ~~Shares~~ 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 ~~11.02(h~~13.02(h). The Trustee (~~and~~ and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 13 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such ~~Holder~~ Xxxxxx has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~12.03~~14.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered~~, subject, in the case of Global Notes, to the rules of the applicable Depositary~~. (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 11.03(b) and Section 11.07(a), the~~ The Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the ~~second~~ third Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the ~~second~~ third Business Day immediately following the last Trading Day of the relevant Observation Period, in the case of ~~any other~~ Cash Settlement ~~Method~~or Combination Settlement. If any shares of Common ~~Shares~~ Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver ~~(if applicable)~~ to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be ~~entitled, in certificate form or in book-entry format,~~ entitled in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company (1) in the case of a Global Note, shall cause the principal balance of a Global Note to be adjusted in accordance with the procedures of the Depositary in effect at that time or (2) in the case of a Physical Note, shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common ~~Shares~~ Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall be required to pay that tax. The Conversion Agent may refuse to deliver or refuse to instruct the stock transfer agent to deliver the certificates representing the shares of Common ~~Shares~~ Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such ~~Holder~~ Xxxxxx in accordance with the immediately preceding sentence. (f) Except as provided in Section ~~11.04~~13.04, no adjustment shall be made for dividends on any shares of Common ~~Shares~~ Stock issued upon the conversion of any Note as provided in this Article 1113. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below~~, and the Company shall not adjust the Conversion Rate to adjust 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 excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date shall be deemed to be paid in full rather than ~~cancelled~~canceled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts ~~exist~~ exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date or any Fundamental Change Repurchase Date as described in the immediately preceding sentence shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date regardless of whether their Notes have been converted following such Regular Record Date. (i) ~~The~~ Subject to Section 13.12, the Person in whose name the certificate for any shares of Common ~~Shares shall be issuable~~ Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common ~~Shares~~ Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of ~~Common Shares~~ shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional ~~Common Shares~~ shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Samples: Indenture (Twitter, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~13.02, Section ~~11.03(b~~13.03(b) and Section ~~11.07(a~~13.07(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of ~~delivering~~ any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 13.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of ~~delivering~~ any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 13.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~13.02. (i) All conversions ~~for which the relevant Conversion Date occurs~~ occurring on or after ~~September~~ October 1, ~~2025~~ 2015 shall be settled using the same Settlement Method. (ii) ~~Except for any conversions for which the relevant Conversion Date occurs on or after September~~ Prior to October 1, ~~2025~~2015, the Company shall use the same Settlement Method for all conversions ~~with~~ occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions ~~with~~ that occur on different Conversion Dates. (iii) If, in respect of any Conversion Date (or any conversions of Notes occurring during the period ~~described in~~ beginning on, and including, June 15, 2015 and ending on, and including, the ~~third~~ Scheduled Trading Day immediately ~~succeeding set of parentheses~~preceding the Maturity Date, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the close of business on the ~~second~~ Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions ~~for which the relevant Conversion Date occurs~~ occurring on or after ~~September~~ October 1, ~~2025~~2015, no later than ~~September~~ October 1, ~~2025~~2015). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar ~~Amount per $1,000 principal amount of Notes~~Amount. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount ~~per $1,000 principal amount of Notes~~ in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. By notice to Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 1, 2025, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through a Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 for all Conversion Dates occurring subsequent to delivery of such notice. Not later than three Business Days after providing notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee) of an irrevocable election with respect to the Settlement Method as described in the immediately preceding sentence, the Company shall issue a Current Report on Form 8-K or press release or otherwise provide public disclosure in a manner compliant with Regulation FD announcing that the Company has made such irrevocable election. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its option. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed by the Company as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted ~~cash in~~ an amount in cash equal to the sum of the Daily Conversion Values for each of the 50 45 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 45 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of ~~delivering~~ any fractional ~~Common Share~~share, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of ~~delivering~~ fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~13.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~11.02(h~~13.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common ~~Shares~~ 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 ~~11.02(h~~13.02(h). The Trustee (~~and~~ and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 13 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such ~~Holder~~ Xxxxxx has also delivered a Fundamental Change Repurchase Notice to the ~~Company~~ Paying Agent in respect of such Notes and ~~has~~ not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~12.03~~14.02. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered~~, subject, in the case of Global Notes, to the rules of the applicable Depositary~~. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as ~~set forth~~ provided in Section ~~11.03(b~~13.03(b) and in Section ~~11.07(a)~~13.07, the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the ~~second~~ third Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the ~~second~~ third Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver ~~(if applicable) to the Conversion Agent or~~ to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be ~~entitled, in certificate form or in book-entry format,~~ entitled in satisfaction of the portion of the Company’s Conversion ~~Obligation~~Obligation that consists of shares of Common Stock, and, on or prior to such issuance, the Company shall give the Conversion Agent notice of the number of shares of Common Stock being so issued and the method by which the issuance shall take place. Any required funds due to a converting Holder in connection with a Cash Settlement or Combination Settlement shall be delivered to the Paying Agent in accordance with the procedures set forth in Section 4.04. (d) In case any Note shall be surrendered for partial conversion, the Company (1) in the case of a Global Note, shall cause the principal balance of a Global Note to be adjusted in accordance with the procedures of the Depositary in effect at that time or (2) in the case of a Physical Note, 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 or similar issue or transfer tax due on the issue of any shares of Common ~~Shares~~ Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common ~~Shares~~ Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section ~~11.04~~13.04, no adjustment shall be made for dividends on any ~~Common Shares~~ shares issued upon the conversion of any ~~Note as provided in this Article 11~~Note. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The 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 to adjust 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 ~~excluding~~not including, the ~~relevant~~ Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~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 ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date or 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 (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts exist at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the certificate for any shares of Common ~~Shares shall be issuable~~ Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Combination Settlement), as the case may be, in each case solely for the purpose of receiving or participating in any dividend, distribution, issuance, share split or combination, tender or exchange offer or any other event that would lead to a Conversion Rate adjustment as described in Section 13.04. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of ~~delivering~~ any fractional share of Common ~~Shares~~ Stock issuable upon conversion based on the Daily VWAP ~~for~~ on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP ~~for~~ on the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of ~~Common Shares~~ shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the ~~relevant~~ applicable Observation Period and any fractional ~~Common Shares~~ shares remaining after such computation shall be paid in cash. (k) Notwithstanding any other provision of this Indenture or the Notes, no Holder will be entitled to receive shares of Common Stock upon conversion to the extent (but only to the extent) that such receipt would cause the converting Holder to exceed the ownership limitation contained in the Charter (“Limitation”). The Board of Directors may, in its sole discretion, in accordance with the Charter, waive the Limitation with respect to a particular stockholder if it is presented with evidence satisfactory to it that such ownership will not then or in the future jeopardize the Company’s qualification as a REIT. 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 9.8% (by value or number of shares) of the shares of Common Stock outstanding at such time.

Appears in 1 contract

Samples: Indenture (Ares Commercial Real Estate Corp)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 11.02, Section 11.03(b) and Section 11.07(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), Common Shares, together with cash, if applicable, in lieu of delivering any fractional Common Shares in accordance with subsection (j) of this Section 11.02 (“Physical Settlement”) or a combination of cash and Common Shares, together with cash, if applicable, in lieu of delivering any fractional Common Shares in accordance with subsection (j) of this Section 11.02 (“Combination Settlement”), at its election, as set forth in this Section 11.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~September~~ March 1, ~~2025~~ 2021 shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs on or after ~~September~~ March 1, ~~2025~~2021, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion Date (or the period described in the third immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the close of business on the second Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs on or after ~~September~~ March 1, ~~2025~~2021, no later than ~~September~~ March 1, ~~2025~~2021). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. By notice to Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 1, 2025, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through a Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 for all Conversion Dates occurring subsequent to delivery of such notice. Not later than three Business Days after providing notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee) of an irrevocable election with respect to the Settlement Method as described in the immediately preceding sentence, the Company shall issue a Current Report on Form 8-K or press release or otherwise provide public disclosure in a manner compliant with Regulation FD announcing that the Company has made such irrevocable election. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its option. (iv) The cash, Common Shares or combination of cash and Common Shares in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of Common Shares equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 40 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 40 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional Common Share, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional Common Shares. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section 11.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 11.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any 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 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 11.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such ~~Holder~~ Xxxxxx has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 12.03. 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~~, subject, in the case of Global Notes, to the rules of the applicable Depositary~~. (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 11.03(b) and Section 11.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the ~~second~~ third Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the ~~second~~ third Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any Common Shares are due to converting Holders, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of Common Shares to which such Holder shall be entitled, in certificate form or in book-entry format, in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company (1) in the case of a Global Note, shall cause the principal balance of a Global Note to be adjusted in accordance with the procedures of the Depositary in effect at that time or (2) in the case of a Physical Note, shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any Common Shares upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the 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~~ Xxxxxx in accordance with the immediately preceding sentence. (f) Except as provided in Section 11.04, no adjustment shall be made for dividends on any Common Shares issued upon the conversion of any Note as provided in this Article 11. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below, and the Company shall not adjust the Conversion Rate to adjust 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 excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and Common Shares, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts exist at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name 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 (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects (or is deemed to have elected) to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional Common Shares upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Common Shares issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of Common Shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional Common Shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Samples: First Supplemental Indenture (TimkenSteel Corp)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~14.02, Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~14.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~September 1~~November 15, ~~2025~~ 2018 shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs on or after ~~September 1~~November 15, ~~2025~~2018, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion Date (or the period described in the third immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the ~~Company~~Company shall inform the Trustee and, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the close of business on the second Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs on or after ~~September 1~~November 15, ~~2025~~2018, no later than ~~September 1~~November 15, ~~2025~~2018). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. By notice to Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 1, 2025, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through a Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 for all Conversion Dates occurring subsequent to delivery of such notice. Not later than three Business Days after providing notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee) of an irrevocable election with respect to the Settlement Method as described in the immediately preceding sentence, the Company shall issue a Current Report on Form 8-K or press release or otherwise provide public disclosure in a manner compliant with Regulation FD announcing that the Company has made such irrevocable election. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its option. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion ~~Date~~Date (provided that the Company shall deliver cash in lieu of fractional shares as described in Section 14.02(j)); (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 45 consecutive Trading Days during the related ~~Observation~~ Conversion Reference Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 45 consecutive Trading Days during the related ~~Observation~~ Conversion Reference Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the ~~Observation~~ Conversion Reference Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common ~~Share~~Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) in writing of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~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 11.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common ~~Shares~~ Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer ~~documents~~ documents, (4) if required, pay all transfer or similar taxes as set forth in Section 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 ~~11.02(h~~14.02(h) and (ii) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time and comply with Section 14.02(b)(i)(3), (4) and (5). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such ~~Holder~~ Xxxxxx has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~12.03~~15.03. A Holder of a Note may obtain copies of the required Form of Notice of Conversion from the Conversion Agent. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered~~, subject, in the case of Global Notes, to the rules of the applicable Depositary~~. (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 ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the ~~second~~ third Business Day immediately following the relevant Conversion Date, if the Company elects Physical ~~Settlement~~Settlement (provided that for any conversions after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Company shall deliver the shares of Common Stock and any cash in lieu of fractional shares on the Maturity Date), or on the ~~second~~ third Business Day immediately following the last Trading Day of the ~~Observation~~ Conversion Reference Period, in the case of any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver ~~(if applicable)~~ to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be ~~entitled, in certificate form or in book-entry format,~~ entitled in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company (1) in the case of a Global Note, shall cause the principal balance of a Global Note to be adjusted in accordance with the procedures of the Depositary in effect at that time or (2) in the case of a Physical Note, shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common ~~Shares~~ Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common ~~Shares~~ Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section ~~11.04~~14.04, no adjustment shall be made for dividends on any shares of Common ~~Shares~~ Stock issued upon the conversion of any Note as provided in this Article 1114. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below~~, and the Company shall not adjust the Conversion Rate to adjust 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 ~~excluding~~not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~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 ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record ~~Date~~Date but prior to the open of business on the Interest Payment Date to which such Regular Record Date relates, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so ~~converted~~converted on the next succeeding Interest Payment Date; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the date on which the corresponding ~~Interest Payment Date~~interest payment is made; or (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts ~~exist~~ exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the shares of Common ~~Shares~~ Stock shall be issuable upon conversion shall ~~be treated as a~~ become the stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical ~~Settlement~~Settlement and such conversion is on or prior to the close of business on the Regular Record Date immediately preceding the Maturity Date), the second Scheduled Trading Day immediately preceding the Maturity Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement and such conversion is after the close of business on the Regular Record Date immediately preceding the Maturity Date) or the last Trading Day of the relevant ~~Observation~~ Conversion Reference Period (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common ~~Shares~~ Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant ~~Observation~~ Conversion Reference Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of ~~Common Shares~~ shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant ~~Observation~~ Conversion Reference Period and any fractional ~~Common Shares~~ shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Samples: Indenture (Live Nation Entertainment, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 11.02, Section 11.03(b) and Section 11.07(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section 11.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section 11.02 (“Combination Settlement”), at its election, as set forth in this Section 11.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~September~~ March 1, ~~2025~~ 2021, and all conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date, shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs ~~on or~~ after ~~September~~ the Company’s issuance of a Redemption Notice with respect to the Notes but prior to the related Redemption Date, and any conversions for which the relevant Conversion Date occurs during the period from, and including, March 1, ~~2025~~2021 to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion Date (or one of the ~~period~~ periods described in the third immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the close of business on the ~~second~~ Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs on (x) after the date of issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date, in such Redemption Notice or ~~after September~~ (y) during the period from, and including, March 1, ~~2025~~2021 to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, no later than ~~September~~ the close of business on the Business Day immediately preceding March 1, ~~2025~~2021). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement during such period and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company timely delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. By notice to Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 1, 2025, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through a Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 for all Conversion Dates occurring subsequent to delivery of such notice. Not later than three Business Days after providing notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee) of an irrevocable election with respect to the Settlement Method as described in the immediately preceding sentence, the Company shall issue a Current Report on Form 8-K or press release or otherwise provide public disclosure in a manner compliant with Regulation FD announcing that the Company has made such irrevocable election. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its option. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 40 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 40 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common ~~Share~~Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section 11.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 11.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common ~~Shares~~ 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 11.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 12.03. 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~~, subject, in the case of Global Notes, to the rules of the applicable Depositary~~. (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 11.03(b) and Section 11.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the ~~second~~ third Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the ~~second~~ third Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver ~~(if applicable)~~ to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be ~~entitled, in certificate form or in book-entry format,~~ entitled in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company (1) in the case of a Global Note, shall cause the principal balance of a Global Note to be adjusted in accordance with the procedures of the Depositary in effect at that time or (2) in the case of a Physical Note, shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common ~~Shares~~ Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common ~~Shares~~ Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section 11.04, no adjustment shall be made for dividends on any shares of Common ~~Shares~~ Stock issued upon the conversion of any Note as provided in this Article 1114. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below~~, and the Company shall not adjust the Conversion Rate to adjust 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 ~~excluding~~not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~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 ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately ~~following~~ succeeding the corresponding Interest Payment Date; or (34) to the extent of any Defaulted Amounts, if any Defaulted Amounts ~~exist~~ exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date and any Fundamental Change Repurchase Date described in clause (3) above shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the shares of Common ~~Shares~~ Stock 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 (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common ~~Shares~~ Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of ~~Common Shares~~ shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional ~~Common Shares~~ shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Samples: First Supplemental Indenture (Depomed Inc)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~13.02, Section ~~11.03(b~~13.03(b) and Section ~~11.07(a~~13.07(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 13.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 13.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~13.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~September 1~~March 15, ~~2025~~ 2021 shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs on or after ~~September 1~~March 15, ~~2025~~2021, the Company shall use the same Settlement Method for all conversions ~~with~~ occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion Date (or the period described in the third immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the close of business on the ~~second~~ Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs on or after ~~September 1~~March 15, ~~2025~~2021, no later than ~~September 1~~the close of business on Scheduled Trading Day immediately preceding March 15, ~~2025~~2021). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to such conversion or during such period and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. By notice to Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 1, 2025, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through a Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 for all Conversion Dates occurring subsequent to delivery of such notice. Not later than three Business Days after providing notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee) of an irrevocable election with respect to the Settlement Method as described in the immediately preceding sentence, the Company shall issue a Current Report on Form 8-K or press release or otherwise provide public disclosure in a manner compliant with Regulation FD announcing that the Company has made such irrevocable election. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its option. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 30 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 30 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common ~~Share~~Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (vi) At any time prior to March 15, 2021, the Company may irrevocably elect Cash Settlement to satisfy its Conversion Obligation in respect of Notes to be converted after the date of such election, or irrevocably elect Combination Settlement and a Specified Dollar Amount (which amount shall be at least $1,000 per $1,000 principal amount of Notes) to satisfy its Conversion Obligation in respect of Notes to be converted after the date of such election. Upon making any election pursuant to this Section 13.02(a)(vi), the Company shall promptly (A) use its reasonable efforts to post information relating to such election on its website or otherwise publicly disclose such information, and (B) give written notice of such election to the Holders of the Notes. (b) Subject to Section ~~11.02(e~~13.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~11.02(h~~13.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common ~~Shares~~ 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 ~~11.02(h~~13.02(h). The Trustee (~~and~~ and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 13 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such ~~Holder~~ Xxxxxx has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~12.03~~14.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered~~, subject, in the case of Global Notes, to the rules of the applicable Depositary~~. (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 11.03(b) and Section 11.07(a), the~~ The Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the ~~second~~ third Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the ~~second~~ third Business Day immediately following the last Trading Day of the relevant Observation Period, in the case of ~~any other~~ Cash Settlement ~~Method~~or Combination Settlement. If any shares of Common ~~Shares~~ Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver ~~(if applicable)~~ to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be ~~entitled, in certificate form or in book-entry format,~~ entitled in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company (1) in the case of a Global Note, shall cause the principal balance of a Global Note to be adjusted in accordance with the procedures of the Depositary in effect at that time or (2) in the case of a Physical Note, shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common ~~Shares~~ Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall be required to pay that tax. The Conversion Agent may refuse to deliver or refuse to instruct the stock transfer agent to deliver the certificates representing the shares of Common ~~Shares~~ Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such ~~Holder~~ Xxxxxx in accordance with the immediately preceding sentence. (f) Except as provided in Section ~~11.04~~13.04, no adjustment shall be made for dividends on any shares of Common ~~Shares~~ Stock issued upon the conversion of any Note as provided in this Article 1113. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below~~, and the Company shall not adjust the Conversion Rate to adjust 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 excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date shall be deemed to be paid in full rather than ~~cancelled~~canceled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts ~~exist~~ exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date or any Fundamental Change Repurchase Date as described in the immediately preceding sentence shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date regardless of whether their Notes have been converted following such Regular Record Date. (i) ~~The~~ Subject to Section 13.12, the Person in whose name the certificate for any shares of Common ~~Shares shall be issuable~~ Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common ~~Shares~~ Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of ~~Common Shares~~ shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional ~~Common Shares~~ shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Samples: Indenture (Twitter, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~13.02, Section ~~11.03(b~~13.03(b) and Section ~~11.07(a~~13.07(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 13.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 13.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~13.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~September~~ May 1, ~~2025~~ 2019 shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs on or after ~~September~~ May 1, ~~2025~~2019, the Company shall use the same Settlement Method for all conversions ~~with~~ occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion Date (or the period described in the third immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the close of business on the ~~second~~ Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs on or after ~~September~~ May 1, ~~2025~~2019, no later than ~~September~~ the close of business on Scheduled Trading Day immediately preceding May 1, ~~2025~~2019). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to such conversion or during such period and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. By notice to Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 1, 2025, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through a Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 for all Conversion Dates occurring subsequent to delivery of such notice. Not later than three Business Days after providing notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee) of an irrevocable election with respect to the Settlement Method as described in the immediately preceding sentence, the Company shall issue a Current Report on Form 8-K or press release or otherwise provide public disclosure in a manner compliant with Regulation FD announcing that the Company has made such irrevocable election. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its option. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 30 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 30 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common ~~Share~~Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (vi) At any time prior to May 1, 2019, the Company may irrevocably elect Cash Settlement to satisfy its Conversion Obligation in respect of Notes to be converted after the date of such election, or irrevocably elect Combination Settlement and a Specified Dollar Amount (which amount shall be at least $1,000 per $1,000 principal amount of Notes) to satisfy its Conversion Obligation in respect of Notes to be converted after the date of such election. Upon making any election pursuant to this Section 13.02(a)(vi), the Company shall promptly (A) use its reasonable efforts to post information relating to such election on its website or otherwise publicly disclose such information, and (B) give written notice of such election to the Holders of the Notes. (b) Subject to Section ~~11.02(e~~13.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~11.02(h~~13.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common ~~Shares~~ 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 ~~11.02(h~~13.02(h). The Trustee (~~and~~ and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 13 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such ~~Holder~~ Xxxxxx has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~12.03~~14.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered~~, subject, in the case of Global Notes, to the rules of the applicable Depositary~~. (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 11.03(b) and Section 11.07(a), the~~ The Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the ~~second~~ third Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the ~~second~~ third Business Day immediately following the last Trading Day of the relevant Observation Period, in the case of ~~any other~~ Cash Settlement ~~Method~~or Combination Settlement, unless such Conversion Date occurs following the Regular Record Date immediately preceding the Maturity Date, in which case the Company shall make such delivery (and payment, if applicable) of the consideration due in respect of the Conversion Obligation on the Maturity Date. If any shares of Common ~~Shares~~ Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver ~~(if applicable)~~ to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be ~~entitled, in certificate form or in book-entry format,~~ entitled in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company (1) in the case of a Global Note, shall cause the principal balance of a Global Note to be adjusted in accordance with the procedures of the Depositary in effect at that time or (2) in the case of a Physical Note, shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common ~~Shares~~ Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall be required to pay that tax. The Conversion Agent may refuse to deliver or refuse to instruct the stock transfer agent to deliver the certificates representing the shares of Common ~~Shares~~ Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such ~~Holder~~ Xxxxxx in accordance with the immediately preceding sentence. (f) Except as provided in Section ~~11.04~~13.04, no adjustment shall be made for dividends on any shares of Common ~~Shares~~ Stock issued upon the conversion of any Note as provided in this Article 1113. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below~~, and the Company shall not adjust the Conversion Rate to adjust 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 excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date shall be deemed to be paid in full rather than ~~cancelled~~canceled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts ~~exist~~ exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date or any Fundamental Change Repurchase Date as described in the immediately preceding sentence shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date regardless of whether their Notes have been converted following such Regular Record Date. (i) ~~The~~ Subject to Section 13.12, the Person in whose name the certificate for any shares of Common ~~Shares shall be issuable~~ Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common ~~Shares~~ Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of ~~Common Shares~~ shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional ~~Common Shares~~ shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Samples: Indenture (Linkedin Corp)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~14.02, Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~14.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~September~~ January 1, ~~2025~~ 2021 shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs on or after ~~September~~ January 1, ~~2025~~2021, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion Date (or the period described in the third immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the close of business on the ~~second~~ Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs on or after ~~September~~ January 1, ~~2025~~2021, no later than ~~September~~ January 1, ~~2025~~2021). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. By notice to Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 1, 2025, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through a Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 for all Conversion Dates occurring subsequent to delivery of such notice. Not later than three Business Days after providing notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee) of an irrevocable election with respect to the Settlement Method as described in the immediately preceding sentence, the Company shall issue a Current Report on Form 8-K or press release or otherwise provide public disclosure in a manner compliant with Regulation FD announcing that the Company has made such irrevocable election. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its option. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 20 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 20 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common ~~Share~~Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~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 ~~11.02(h~~14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile 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 shares of Common ~~Shares~~ 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 ~~11.02(h~~14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such ~~Holder~~ Xxxxxx has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~12.03~~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~~, subject, in the case of Global Notes, to the rules of the applicable Depositary~~. (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 ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the ~~second~~ third Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, provided, if the Conversion Date is after the Regular Record Date for the last Interest Payment Date, such payment or delivery will occur on the Maturity Date, or on the ~~second~~ third Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be entitled, in certificate form or in book-entry format, in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company (1) in the case of a Global Note, shall cause the principal balance of a Global Note to be adjusted in accordance with the procedures of the Depositary in effect at that time or (2) in the case of a Physical Note, shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common ~~Shares~~ Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common ~~Shares~~ Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such ~~Holder~~ Xxxxxx in accordance with the immediately preceding sentence. (f) Except as provided in Section ~~11.04~~14.04, no adjustment shall be made for dividends on any shares of Common ~~Shares~~ Stock issued upon the conversion of any Note as provided in this Article 1114. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below~~, and the Company shall not adjust the Conversion Rate to adjust 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 ~~excluding~~not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~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 ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts ~~exist~~ exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the shares of Common ~~Shares~~ 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 (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common ~~Shares~~ Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of ~~Common Shares~~ shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional ~~Common Shares~~ shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Samples: Second Supplemental Indenture (SM Energy Co)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~8.02, Section ~~11.03(b~~8.03(b) and Section ~~11.07(a~~8.07(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with ~~subsection (j~~Section 8.02(j) ~~of this Section 11.02~~ (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with ~~subsection (j~~Section 8.02(j) ~~of this Section 11.02~~ (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~8.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~September~~ July 1, ~~2025~~ 2023 shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs on or after ~~September~~ July 1, ~~2025~~2023, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion Date (or the period described in the third immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the ~~Company, through the Trustee,~~ Company shall deliver such Settlement Notice to converting Holders and the Trustee no later than the close of business on the ~~second~~ Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs ~~on or after September~~ during the period from, and including, July 1, ~~2025~~2023 to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, no later than ~~September~~ July 1, ~~2025~~2023). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. By notice to Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 1, 2025, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through a Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 for all Conversion Dates occurring subsequent to delivery of such notice. Not later than three Business Days after providing notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee) of an irrevocable election with respect to the Settlement Method as described in the immediately preceding sentence, the Company shall issue a Current Report on Form 8-K or press release or otherwise provide public disclosure in a manner compliant with Regulation FD announcing that the Company has made such irrevocable election. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its option. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 20 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 20 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the relevant Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common ~~Share~~Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~8.02(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 (excluding any Additional Interest) payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~11.02(h~~8.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common ~~Shares~~ 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 (but excluding any Additional Interest) payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~11.02(h~~8.02(h). The Trustee (~~and~~ and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 8 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~12.03~~9.02, except to the extent that a portion of such Holder’s Notes is not subject to such Fundamental Change Repurchase Notice. 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~~, subject, in the case of Global Notes, to the rules of the applicable Depositary~~. (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~~above (the “Conversion Date”). Except as set forth in ‎‎Section 8.03(b), Section ~~11.03(b~~8.04(c)(ii), Section 8.04(e) and ~~Section 11.07(a~~‎Section 8.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the ~~second~~ third Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the ~~second~~ third Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method; provided, however, that, with respect to any Conversion Date that occurs on or after the Regular Record Date immediately preceding the Maturity Date, the Company shall deliver the consideration due upon conversion on the Maturity Date. If any shares of Common ~~Shares~~ Stock are due to converting Holders, 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 shares of Common ~~Shares~~ Stock to which such Holder shall be ~~entitled, in certificate form or in book-entry format,~~ entitled in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company (1) in the case of a Global Note, shall cause the principal balance of a Global Note to be adjusted in accordance with the procedures of the Depositary in effect at that time or (2) in the case of a Physical Note, 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~~ transfer or similar ~~issue~~ taxes due upon conversion other than any tax or duty that may be payable relating to any transfer ~~tax~~ involved in the issuance or delivery of shares of Common Stock, if any, due ~~on the issue of any Common Shares~~ upon ~~conversion, unless the tax is due because the Holder requests such shares to be issued~~ conversion in a name other than that of the converting Holder, which such taxes shall be the obligation of the Holder~~’s name~~. Shares of Common Stock 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 Conversion Agent may refuse to deliver the certificates representing the Common Shares being issued~~ have been paid 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~~full. (f) Except as provided in Section ~~11.04~~8.04, no adjustment shall be made for dividends on any shares of Common ~~Shares issued~~ Stock delivered upon the conversion of any Note as provided in this ‎ Article 11‎8. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid ~~interest~~interest (excluding Additional Interest), if any, except as set forth below~~, and the Company shall not adjust the Conversion Rate to adjust 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 ~~excluding~~not including, the relevant Conversion Date. As a result, accrued and unpaid ~~interest~~interest and accrued tax original issue discount, if any, to, but ~~excluding~~not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. ~~Upon a~~ With respect to any conversion of ~~Notes into a combination of cash and Common Shares~~the Notes, accrued and unpaid interest will be deemed to be paid first out of ~~the~~ any cash paid upon ~~such~~ conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the ~~immediately following~~ corresponding Interest Payment Date must be accompanied by funds equal to the amount of interest ~~payable, on such Interest Payment Date,~~ (excluding any Additional Interest) payable on the Notes so ~~converted;~~ converted on the corresponding Interest Payment Date; provided that no such payment shall be required (1) for conversions following the close of business on the Regular Record Date immediately preceding the Maturity ~~Date;~~ Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment ~~Date;~~ Date; or (3) to the extent of any Defaulted ~~Amounts~~Interest, if any Defaulted ~~Amounts exist~~ Interest exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name ~~the~~ any shares of Common ~~Shares shall be issuable~~ Stock delivered upon conversion are registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) ~~The~~ Notwithstanding the foregoing, the Company shall not ~~issue~~ deliver any fractional ~~Common Shares~~ shares upon conversion ~~of the Notes~~ and instead shall ~~instead pay~~ deliver cash in lieu of ~~delivering any~~ fractional ~~Common Shares issuable upon conversion~~ shares based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of ~~Common Shares~~ shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional ~~Common Shares~~ shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Samples: Third Supplemental Indenture (Macquarie Infrastructure Corp)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~13.02, Section ~~11.03(b~~13.03(b) and Section ~~11.07(a~~13.07(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of ~~delivering~~ any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 13.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of ~~delivering~~ any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 13.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~13.02. (i) All conversions ~~for which the relevant Conversion Date occurs~~ occurring on or after ~~September~~ August 1, ~~2025~~ 2021 shall be settled using the same Settlement Method. (ii) ~~Except for any conversions for which the relevant Conversion Date occurs on or after September~~ Prior to August 1, ~~2025~~2021, the Company shall use the same Settlement Method for all conversions ~~with~~ occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions ~~with~~ that occur on different Conversion Dates. (iii) If, in respect of any Conversion Date (or any conversions of Notes occurring during the period ~~described in~~ beginning on, and including, August 1, 2021 and ending on, and including, the ~~third~~ Scheduled Trading Day immediately ~~succeeding set of parentheses~~preceding the Maturity Date, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the close of business on the ~~second~~ Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions ~~for which the relevant Conversion Date occurs~~ occurring on or after ~~September~~ August 1, ~~2025~~2021, no later than ~~September~~ August 1, ~~2025~~2021). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar ~~Amount per $1,000 principal amount of Notes~~Amount. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount ~~per $1,000 principal amount of Notes~~ in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. By notice to Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 1, 2025, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through a Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 for all Conversion Dates occurring subsequent to delivery of such notice. Not later than three Business Days after providing notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee) of an irrevocable election with respect to the Settlement Method as described in the immediately preceding sentence, the Company shall issue a Current Report on Form 8-K or press release or otherwise provide public disclosure in a manner compliant with Regulation FD announcing that the Company has made such irrevocable election. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its option. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed by the Company as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted ~~cash in~~ an amount in cash equal to the sum of the Daily Conversion Values for each of the 50 15 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 15 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of ~~delivering~~ any fractional ~~Common Share~~share, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of ~~delivering~~ fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~13.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~11.02(h~~13.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common ~~Shares~~ 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 ~~11.02(h~~13.02(h). The Trustee (~~and~~ and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 13 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the ~~Company~~ Paying Agent in respect of such Notes and ~~has~~ not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~12.03~~14.02. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered~~, subject, in the case of Global Notes, to the rules of the applicable Depositary~~. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as ~~set forth~~ provided in Section ~~11.03(b~~13.03(b) and in Section ~~11.07(a)~~13.07, the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the ~~second~~ third Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the ~~second~~ third Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver ~~(if applicable) to the Conversion Agent or~~ to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be ~~entitled, in certificate form or in book-entry format,~~ entitled in satisfaction of the portion of the Company’s Conversion ~~Obligation~~Obligation that consists of shares of Common Stock, and, on or prior to such issuance, the Company shall give the Conversion Agent notice of the number of shares of Common Stock being so issued and the method by which the issuance shall take place. Any required funds due to a converting Holder in connection with a Cash Settlement or Combination Settlement shall be delivered to the Paying Agent and such Holder, or such Holder’s nominee or nominees, in accordance with the procedures set forth in Section 14.03. (d) In case any Note shall be surrendered for partial conversion, the Company (1) in the case of a Global Note, shall cause the principal balance of a Global Note to be adjusted in accordance with the procedures of the Depositary in effect at that time or (2) in the case of a Physical Note, 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 or similar issue or transfer tax due on the issue of any shares of Common ~~Shares~~ Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common ~~Shares~~ Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section ~~11.04~~13.04, no adjustment shall be made for dividends on any ~~Common Shares~~ shares issued upon the conversion of any Note as provided in this Article 1114. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below~~, and the Company shall not adjust the Conversion Rate to adjust 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 ~~excluding~~not including, the ~~relevant~~ Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~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 ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on or before the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest ~~payable,~~ payable on such Interest Payment ~~Date,~~ Date on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts exist at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date ~~shall~~ will receive the full interest payment due on the Maturity Date regardless of whether ~~their~~ such Holders’ Notes have been converted following such Regular Record Date. (i) The Person in whose name the certificate for any shares of Common ~~Shares shall be issuable~~ Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Combination Settlement), as the case may be, in each case solely for the purpose of receiving or participating in any dividend, distribution, issuance, share split or combination, tender or exchange offer or any other event that would lead to a Conversion Rate adjustment as described in Section 13.04. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of ~~delivering~~ any fractional share of Common ~~Shares~~ Stock issuable upon conversion based on the Daily VWAP ~~for~~ on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP ~~for~~ on the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of ~~Common Shares~~ shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the ~~relevant~~ applicable Observation Period and any fractional ~~Common Shares~~ shares remaining after such computation shall be paid in cash. (k) Notwithstanding anything to the contrary herein, no Holder shall be entitled to receive shares of Common Stock upon conversion to the extent (but only to the extent) that such receipt would cause such converting Holder to become, directly or indirectly, a “beneficial owner” (within the meaning of Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) of more than 5.0% of the shares of Common Stock outstanding at such time (the “Limitation”). Any purported delivery of shares of Common Stock upon conversion of Notes shall be void and have no effect to the extent (but only to the extent) that such delivery would result in the converting Holder becoming the beneficial owner of more than the Limitation. If any delivery of shares of Common Stock owed to a Holder upon conversion of Notes is not made, in whole or in part, as a result of the Limitation, the Company’s obligation to make such delivery shall not be extinguished and the Company shall deliver such shares as promptly as practicable after any such converting Holder gives notice to the Company that such delivery would not result in it being the beneficial owner of more than 5.0% of the shares of Common Stock outstanding at such time. The Limitation shall no longer apply following the effective date of any Fundamental Change.

Appears in 1 contract

Samples: Indenture (Ares Capital Corp)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this ~~Section 11.02~~Sections 14.02, ~~Section 11.03(b~~14.03(b) and ~~Section 11.07(a~~14.07(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~14.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~September 1~~January 15, ~~2025~~ 2020 shall be settled using the same Settlement Method. (ii) ~~Except for~~ For any conversions for which the relevant Conversion Date occurs ~~on or after September 1~~prior to January 15, ~~2025~~2020, the Company shall use the same Settlement Method for all conversions ~~with~~ occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion Date (or the period described in the ~~third immediately succeeding~~ set of ~~parentheses~~parentheses at the end of this sentence, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the ~~Company, through the Trustee,~~ Company shall deliver such Settlement Notice to converting ~~Holders~~ Holders, with a copy to the Trustee and the Conversion Agent (if other than the Trustee), no later than the close of business on the second Scheduled Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs on or after ~~September 1~~January 15, ~~2025~~2020, no later than ~~September 1~~the close of business on the Business Day immediately preceding January 15, ~~2025~~2020). If the Company does not elect a Settlement Method for a particular Conversion Date prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to such Conversion Date and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. By notice to Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 1, 2025, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through a Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 for all Conversion Dates occurring subsequent to delivery of such notice. Not later than three Business Days after providing notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee) of an irrevocable election with respect to the Settlement Method as described in the immediately preceding sentence, the Company shall issue a Current Report on Form 8-K or press release or otherwise provide public disclosure in a manner compliant with Regulation FD announcing that the Company has made such irrevocable election. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its option. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion ~~Date~~Date (together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02); (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 40 consecutive VWAP Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 40 consecutive VWAP Trading Days during the related Observation ~~Period~~Period (together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02). (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common ~~Share~~Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~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 ~~11.02(h~~14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile 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 shares of Common ~~Shares~~ 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 ~~11.02(h~~14.02(h). The Trustee (~~and~~ and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~12.03~~15.03. If a Holder has delivered a Fundamental Change Repurchase Notice, such Holder’s right to withdraw such Fundamental Change Repurchase Notice and convert the Notes that are subject thereto shall terminate at the close of business on the 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~~, subject, in the case of Global Notes, to the rules of the applicable Depositary~~. (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 11.03(b~~Sections 14.03(b) and ~~Section 11.07(a~~14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the ~~second~~ third Business Day immediately following the relevant Conversion Date, if the Company elects Physical ~~Settlement~~Settlement (provided that, with respect to any Conversion Date occurring on or after the Regular Record Date immediately preceding the Maturity Date, the Company shall settle any such conversion on the Maturity Date), or on the ~~second~~ third Business Day immediately following the last VWAP Trading Day of the relevant Observation Period, in the case of any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver ~~(if applicable)~~ to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be ~~entitled, in certificate form or in book-entry format,~~ entitled in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company (1) in the case of a Global Note, shall cause the principal balance of a Global Note to be adjusted in accordance with the procedures of the Depositary in effect at that time or (2) in the case of a Physical Note, shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the ~~issue~~ issuance of any shares of Common ~~Shares~~ Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver or refuse to instruct the stock transfer agent to deliver the certificates representing the shares of Common ~~Shares~~ Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section ~~11.04~~14.04, no adjustment shall be made for dividends on any shares of Common ~~Shares~~ Stock issued upon the conversion of any Note as provided in this Article 1114. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, including Additional Interest if any, except as set forth below~~, and the Company shall not adjust the Conversion Rate to adjust 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 ~~excluding~~not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~not including, the relevant Conversion Date shall be deemed to be paid in full rather than ~~cancelled~~canceled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date but prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest ~~payable,~~ payable on the Notes so converted on such Interest Payment Date~~, on the Notes so converted~~; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date, and the conversion occurs after such Regular Record Date and on or prior to such Business Day; or (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts exist at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record at the close of business on the Regular Record Date immediately preceding the Maturity Date or any Fundamental Change Repurchase Date as described in the immediately preceding sentence shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the certificate for any shares of Common ~~Shares shall be issuable~~ 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 (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or as of the last VWAP Trading Day of the relevant Observation Period (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common ~~Shares~~ Stock issuable upon conversion based on the Daily VWAP ~~for~~ on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP ~~for~~ on the last VWAP Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of ~~Common Shares~~ shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional ~~Common Shares~~ shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Samples: Indenture (Pattern Energy Group Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~14.02, Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~14.02. (i) All conversions ~~for which the relevant Conversion Date occurs~~ occurring on or after ~~September 1~~November 15, ~~2025~~ 2022 shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs on or after ~~September 1~~November 15, ~~2025~~2022, the Company shall use the same Settlement Method for all conversions ~~with~~ occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions ~~with~~ that occur on different Conversion Dates. (iii) If, in respect of any Conversion Date (or the period ~~described in the third immediately succeeding set of parentheses~~on or after November 15, 2022, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the ~~Company, through the Trustee,~~ Company shall deliver such Settlement Notice to converting ~~Holders~~ Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the ~~second~~ Scheduled Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions ~~for which the relevant Conversion Date occurs~~ occurring on or after ~~September 1~~November 15, ~~2025~~2022, no later than ~~September 1~~the close of business on Scheduled Trading Day immediately preceding November 15, ~~2025~~2022). If the Company does not timely elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement for such conversion or during such period and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. By notice to Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 1, 2025, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through a Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 for all Conversion Dates occurring subsequent to delivery of such notice. Not later than three Business Days after providing notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee) of an irrevocable election with respect to the Settlement Method as described in the immediately preceding sentence, the Company shall issue a Current Report on Form 8-K or press release or otherwise provide public disclosure in a manner compliant with Regulation FD announcing that the Company has made such irrevocable election. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its option. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion ~~Date~~Date (plus cash in lieu of any fractional share of Common Stock issuable upon conversion as set forth in Section 14.02(j)); (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 40 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 40 consecutive Trading Days during the related Observation ~~Period~~Period (plus cash in lieu of any fractional share of Common Stock issuable upon conversion as set forth in Section 14.02(j)). (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common ~~Share~~Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~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 ~~11.02(h~~14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a ~~facsimile~~ 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 shares of Common ~~Shares~~ 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 ~~11.02(h~~14.02(h). The Trustee (~~and~~ and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 14 on the Conversion Date for such conversion. No ~~Notice of Conversion with respect to any~~ Notes may be surrendered for conversion by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~12.03~~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~~, subject, in the case of Global Notes, to the rules of the applicable Depositary~~. (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 ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the second Business Day immediately following the last Trading Day of the relevant Observation Period, in the case of any other Settlement Method; provided that, with respect to any Conversion Date occurring on or after February 1, 2023, the Company will settle any such conversion for which Physical Settlement is applicable on the Maturity Date. If any shares of Common ~~Shares~~ Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver ~~(if applicable)~~ to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be ~~entitled, in certificate form or in book-entry format,~~ entitled in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company (1) in the case of a Global Note, shall cause the principal balance of a Global Note to be adjusted in accordance with the procedures of the Depositary in effect at that time or (2) in the case of a Physical Note, shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common ~~Shares~~ Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common ~~Shares~~ Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section ~~11.04~~14.04, no adjustment shall be made for dividends on any shares of Common ~~Shares~~ Stock issued upon the conversion of any Note as provided in this Article 1114. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below~~, and the Company shall not adjust the Conversion Rate to adjust 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 excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment ~~Date~~ Date, however, must be accompanied by funds equal to the amount of interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately ~~following~~ succeeding the corresponding Interest Payment Date; (3) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the corresponding Interest Payment Date; or (34) to the extent of any Defaulted Amounts, if any Defaulted Amounts ~~exist~~ exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the certificate for any shares of Common ~~Shares shall be issuable~~ Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common ~~Shares~~ Stock issuable upon conversion based on the Daily VWAP ~~for~~ on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP ~~for~~ on the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of ~~Common Shares~~ shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional ~~Common Shares~~ shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Samples: Indenture (Q2 Holdings, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~14.02, Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of ~~delivering~~ any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of ~~delivering~~ any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~14.02. (i) All conversions ~~for which the relevant Conversion Date occurs~~ occurring on or after ~~September~~ December 1, ~~2025~~ 2015 shall be settled using the same Settlement Method. (ii) ~~Except for any~~ For all conversions ~~for which the relevant Conversion Date occurs on or after September~~ prior to December 1, ~~2025~~2015, the Company shall use the same Settlement Method for all conversions ~~with~~ occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions ~~with~~ that occur on different ~~Conversion Dates~~Trading Days, subject to clause (i) above. (iii) ~~If,~~ The Company may elect a Settlement Method in respect of any Conversion Date on or prior to December 1, 2015 (or for all Conversion Dates occurring during the period ~~described in~~ beginning on, but excluding, December 1, 2015 and ending on, and including, the ~~third~~ Business Day immediately ~~succeeding set of parentheses~~preceding the Maturity Date, as the case may be), ~~the Company elects to deliver~~ by delivering a notice (the “Settlement Notice”) to converting Holders of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be~~), the Company,~~ ) through the ~~Trustee, shall deliver such Settlement Notice to converting Holders~~ Trustee no later than the close of business on the second Trading Day immediately following the ~~relevant~~ related Conversion Date (or, ~~in the case of any conversions~~ for ~~which the relevant Conversion Date occurs on or after September 1, 2025~~such period, no later than ~~September~~ December 1, ~~2025~~2015). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar ~~Amount per $1,000 principal amount of Notes~~Amount. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount ~~per $1,000 principal amount of Notes~~ in such Settlement Notice, the Specified Dollar Amount ~~per $1,000 principal amount of Notes~~ shall be deemed to be $1,000. ~~By notice to Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee), the~~ The Company may, prior to ~~September~~ December 1, ~~2025~~2015, at its ~~option,~~ option irrevocably elect ~~to satisfy its Conversion Obligation with respect to the Notes through~~ in a ~~Combination~~ global Settlement ~~with~~ Notice a particular Specified Dollar Amount ~~per $1,000 principal amount of Notes of $1,000~~ for all ~~Conversion Dates occurring~~ conversions subsequent to ~~delivery of~~ such ~~notice. Not later than three Business Days after providing notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee) of an irrevocable election with respect to the~~ Settlement Method as described in the immediately preceding sentence, the Company shall issue a Current Report on Form 8-K or press release or otherwise provide public disclosure in a manner compliant with Regulation FD announcing that the Company has made such irrevocable election. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its optionNotice. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder ~~in respect~~ a number of ~~each $1,000~~ shares of Common Stock equal to (1) the aggregate principal amount of Notes ~~being converted a number of Common Shares equal~~ to be converted, divided by $1,000, multiplied by (2) the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 30 consecutive Trading Days during the related ~~Observation~~ Conversion Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 30 consecutive Trading Days during the related ~~Observation~~ Conversion Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the ~~Observation~~ Conversion Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of ~~delivering~~ any fractional ~~Common Share~~share, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of ~~delivering~~ fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~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 ~~11.02(h~~14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile 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 shares of Common ~~Shares~~ 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 ~~11.02(h~~14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such ~~Holder~~ Xxxxxx has also delivered a ~~Fundamental Change Repurchase~~ Purchase Exercise Notice to the Company in respect of such Notes and ~~has~~ not validly withdrawn such ~~Fundamental Change Repurchase~~ Purchase Exercise Notice in accordance with Section ~~12.03~~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~~, subject, in the case of Global Notes, to the rules of the applicable Depositary~~. (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 11.03(b) and Section 11.07(a), the~~ The Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation ~~on the second~~ (i) three Business ~~Day~~ Days immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or ~~on the second~~ (ii) three Business ~~Day~~ Days immediately following the last ~~Trading Day~~ day of the ~~Observation~~ Conversion Period, in the case of any other Settlement Method; provided, however, that if prior to the Conversion Date for any converted Notes the Common Stock has been replaced by Reference Property consisting solely of cash, the Company shall pay the conversion consideration due in respect of conversion on the third Trading Day immediately following the related Conversion Date, and, notwithstanding the foregoing, no Conversion Period shall apply to those conversions. If any shares of Common ~~Shares~~ Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver ~~(if applicable)~~ to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be ~~entitled, in certificate form or in book-entry format,~~ entitled in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company (1) in the case of a Global Note, shall cause the principal balance of a Global Note to be adjusted in accordance with the procedures of the Depositary in effect at that time or (2) in the case of a Physical Note, shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any ~~documentary, stamp or similar issue or~~ transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common ~~Shares~~ Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common ~~Shares~~ Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section ~~11.04~~14.04, no adjustment shall be made for dividends on any ~~Common Shares~~ shares issued upon the conversion of any Note as provided in this Article 1114. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon ~~conversion~~conversion of a Note, a Holder shall not receive any ~~separate~~ additional cash payment for accrued and unpaid interest, if any, except as set forth below~~, and the Company shall not adjust the Conversion Rate to adjust 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 ~~excluding~~not including, the ~~relevant~~ Conversion Date. ~~As a result~~Therefore, accrued and unpaid interest, if any, to, but ~~excluding~~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 ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Holders of Notes ~~are converted after~~ as of the close of business on a Regular Record ~~Date, Holders of such Notes as of the close of business on such Regular Record~~ Date will receive the full ~~amount~~ payment of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the ~~conversion~~conversion of such Notes at any time after the close of business on the such Regular Record Date. Notes surrendered for conversion ~~during the period from~~ by a Holder after the close of business on any Regular Record Date but prior to the open of business on the immediately following Interest Payment Date must be accompanied by ~~funds~~ payment of an amount equal to the ~~amount of~~ interest ~~payable, on such Interest Payment Date,~~ that will be payable on the Notes so converted; provided that no such payment shall be required (1) ~~for conversions following the Regular Record Date immediately preceding the Maturity Date; (2)~~ if the Company has specified a Fundamental Change ~~Repurchase~~ Purchase Date that is after a Regular Record Date and on or prior to the ~~Business Day immediately following the~~ corresponding Interest Payment Date; (2) with respect to any Notes surrendered for conversions following the Regular Record Date immediately preceding the Maturity Date; or (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts exist at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the certificate for any shares of Common ~~Shares shall be issuable~~ Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant ~~Observation~~ Conversion Period (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of ~~delivering~~ any fractional share of Common ~~Shares~~ Stock issuable upon conversion based on the Daily VWAP ~~for~~ on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP ~~for~~ on the last Trading Day of the relevant ~~Observation~~ Conversion Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of ~~Common Shares~~ shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the ~~relevant Observation~~ applicable Conversion Period and any fractional ~~Common Shares~~ shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Samples: Indenture (Akorn Inc)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~14.02, Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~14.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~September 1~~May 15, ~~2025~~ 2023 shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs on or after ~~September 1~~May 15, ~~2025~~2023, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion Date (or the period described in the third immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the ~~Company, through the Trustee,~~ Company shall deliver such Settlement Notice to converting Holders through the Trustee no later than the close of business on the ~~second~~ Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs on or after ~~September 1~~May 15, ~~2025~~2023, no later than ~~September 1~~May 15, ~~2025~~2023). If the Company does not timely elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of ~~Notes~~Notes to be converted. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes to be converted shall be deemed to be $1,000. By notice to Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 1, 2025, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through a Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 for all Conversion Dates occurring subsequent to delivery of such notice. Not later than three Business Days after providing notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee) of an irrevocable election with respect to the Settlement Method as described in the immediately preceding sentence, the Company shall issue a Current Report on Form 8-K or press release or otherwise provide public disclosure in a manner compliant with Regulation FD announcing that the Company has made such irrevocable election. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its option. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 30 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 30 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common ~~Share~~Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~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 (x) funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~11.02(h~~14.02(h), and (y) if required, pay all transfer and similar taxes as set forth in Section 14.02(d) and Section 14.02(e), if any, and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a ~~facsimile~~ 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 shares of Common ~~Shares~~ 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 ~~11.02(h~~14.02(h) and (5) if required, pay all transfer and similar taxes as set forth in Section 14.02(d) and Section 14.02(e), if any. The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~12.03~~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~~, subject, in the case of Global Notes, to the rules of the applicable Depositary~~. (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 ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the second Business Day immediately following the last Trading Day of the relevant Observation Period, in the case of any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to a converting ~~Holders~~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 shares of Common ~~Shares~~ Stock to which such Holder shall be entitled, in ~~certificate form or in~~ book-entry ~~format~~format through the Depositary, in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company (1) in the case of a Global Note, shall cause the principal balance of a Global Note to be adjusted in accordance with the procedures of the Depositary in effect at that time or (2) in the case of a Physical Note, shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common ~~Shares~~ Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver or refuse to instruct the stock transfer agent to deliver the certificates representing the shares of Common ~~Shares~~ Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section ~~11.04~~14.04, no adjustment shall be made for dividends on any shares of Common ~~Shares~~ Stock issued upon the conversion of any Note as provided in this Article 1114. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for any accrued and unpaid interest~~, if any~~, except as set forth below~~, and the Company shall not adjust the Conversion Rate to adjust 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 ~~excluding~~not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~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 ~~Shares~~Stock, any accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date for the payment of interest and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts ~~exist~~ exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date or any Fundamental Change Repurchase Date described in clause (2) above shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the shares of Common ~~Shares~~ 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 (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common ~~Shares~~ Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of ~~Common Shares~~ shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional ~~Common Shares~~ shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Samples: Indenture (Fti Consulting Inc)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~13.02, Section ~~11.03(b~~13.03(c) and Section ~~11.07(a~~13.07(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 13.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 13.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~13.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~September~~ December 1, ~~2025~~ 2021 shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs on or after ~~September~~ December 1, ~~2025~~2021, the Company shall use the same Settlement Method for all conversions ~~with~~ occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion Date (or the period described in the third immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the close of business on the ~~second~~ Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs on or after ~~September~~ December 1, ~~2025~~2021, no later than ~~September~~ the close of business on Scheduled Trading Day immediately preceding December 1, ~~2025~~2021). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to such conversion or during such period and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. By notice to Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 1, 2025, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through a Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 for all Conversion Dates occurring subsequent to delivery of such notice. Not later than three Business Days after providing notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee) of an irrevocable election with respect to the Settlement Method as described in the immediately preceding sentence, the Company shall issue a Current Report on Form 8-K or press release or otherwise provide public disclosure in a manner compliant with Regulation FD announcing that the Company has made such irrevocable election. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its option. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 30 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 30 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common ~~Share~~Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (vi) At any time prior to December 1, 2021, the Company may irrevocably elect Cash Settlement to satisfy its Conversion Obligation in respect of Notes to be converted after the date of such election, or irrevocably elect Combination Settlement and a Specified Dollar Amount (which amount shall be at least $1,000 per $1,000 principal amount of Notes) to satisfy its Conversion Obligation in respect of Notes to be converted after the date of such election. Upon making any election pursuant to this Section 13.02(a)(vi), the Company shall promptly (A) use its reasonable efforts to post information relating to such election on its website or otherwise publicly disclose such information, and (B) give written notice of such election to the Holders of the Notes. (b) Subject to Section ~~11.02(e~~13.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~11.02(h~~13.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common ~~Shares~~ 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 ~~11.02(h~~13.02(h). The Trustee (~~and~~ and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 13 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~12.03~~14.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered~~, subject, in the case of Global Notes, to the rules of the applicable Depositary~~. (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 11.03(b) and Section 11.07(a), the~~ The Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the ~~second~~ third Business Day immediately following the relevant Conversion Date, if the Company elects Physical ~~Settlement~~Settlement for any conversion occurring prior to the Regular Record Date immediately preceding the Maturity Date; on the Maturity Date, for any conversion occurring on or after the Regular Record Date immediately preceding the Maturity Date; or on the ~~second~~ third Business Day immediately following the last Trading Day of the relevant Observation Period, in the case of ~~any other~~ Cash Settlement ~~Method~~or Combination Settlement. If any shares of Common ~~Shares~~ Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver ~~(if applicable)~~ to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be ~~entitled, in certificate form or in book-entry format,~~ entitled in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company (1) in the case of a Global Note, shall cause the principal balance of a Global Note to be adjusted in accordance with the procedures of the Depositary in effect at that time or (2) in the case of a Physical Note, shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common ~~Shares~~ Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall be required to pay that tax. The Conversion Agent may refuse to deliver or refuse to instruct the stock transfer agent to deliver the certificates representing the shares of Common ~~Shares~~ Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section ~~11.04~~13.04, no adjustment shall be made for dividends on any shares of Common ~~Shares~~ Stock issued upon the conversion of any Note as provided in this Article 1113. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below~~, and the Company shall not adjust the Conversion Rate to adjust 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 excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date shall be deemed to be paid in full rather than ~~cancelled~~canceled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts ~~exist~~ exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record at the close of business on the Regular Record Date immediately preceding the Maturity Date or any Fundamental Change Repurchase Date as described in the immediately preceding sentence shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date regardless of whether their Notes have been converted following such Regular Record Date. (i) ~~The~~ Subject to Section 13.12, the Person in whose name the certificate for any shares of Common ~~Shares shall be issuable~~ Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common ~~Shares~~ Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of ~~Common Shares~~ shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional ~~Common Shares~~ shares remaining after such computation shall be paid in cash. (k) Any applicable withholding taxes (including backup withholding) may be withheld from interest and payments upon conversion, repurchase or maturity of the Notes, or if any withholding taxes (including backup withholding) are paid on behalf of a Holder, those withholding taxes may be set off against payments of cash or Common Stock, if any, payable on the Notes to such Holder.

Appears in 1 contract

Samples: Indenture (Square, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) ~~Subject to this~~ Except as provided in Section ~~11.02, Section 11.03(b~~13.03(b) and Section ~~11.07(a~~13.07(a), upon conversion of any Note, the Company ~~shall~~ will pay or deliver, as ~~the case may be~~applicable, ~~to the converting Holder, in respect of each $1,000 principal amount of Notes being converted,~~ (x) cash (“Cash Settlement”); or (y) a combination of cash and shares of Common Stock, ~~Common Shares, together with cash~~together, if applicable, with cash in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with ~~subsection (j~~Section 13.02(k) of this Section 11.02 (“Physical Settlement”) or a combination of cash and Common Shares, together with cash, if applicable, in lieu of delivering any fractional Common Shares in accordance with subsection (j) of this Section 11.02 (“Combination Settlement”), in each case at ~~its~~ the Company’s election, ~~as set forth in this Section 11.02~~subject to the following. (i) ~~All conversions for which the relevant Conversion Date occurs on or after September 1, 2025 shall be settled using the same Settlement Method.~~ Except as provided in clause (ii) ~~Except for any conversions for which the relevant Conversion Date occurs on~~ or ~~after September 1, 2025~~(iii) below, the Company ~~shall~~ must use the same Settlement Method for all conversions with a Conversion Date that occurs on the same ~~Conversion Date~~day, but the Company ~~shall~~ will not ~~have any obligation~~ be obligated to use the same Settlement Method ~~with respect to~~ for conversions with Conversion Dates that occur on different days. If the Company elects a Settlement Method for a conversion with a Conversion ~~Dates~~Date that occurs before November 15, 2028, then the Company will send notice of such Settlement Method to the converting Holder no later than the Close of Business on the Business Day immediately after the Conversion Date. (ii) Except as provided in clause (iii) below, all conversions with a Conversion Date occurring on or after November 15, 2028 will be settled using the same Settlement Method, and the Company will send notice of such Settlement Method to Holders (with a copy to the Conversion Agent) no later than the Close of Business on November 15, 2028. (iii) IfNotwithstanding anything to the contrary in clauses (i) or (ii) above, ~~in respect of~~ if the Company calls any ~~Conversion Date~~ Notes for redemption, then (or x) the ~~period described~~ Company will specify in the ~~third immediately succeeding set~~ related Notice of ~~parentheses, as the case may be), the Company elects to deliver a notice~~ Optional Redemption (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the close of business on the second Trading Day immediately following the relevant Conversion Date (orand, in the case of ~~any~~ an Optional Redemption of less than all outstanding Notes, in a notice simultaneously sent to all Holders of Notes not called for Optional Redemption) the Settlement Method that will apply to all conversions of Notes called for redemption pursuant to such Notice of Optional Redemption with a Conversion Date that occurs on or after the date the Company has sent such Notice of Optional Redemption and before the Business Day immediately before the related Redemption Date (or, if the Company Defaults in the payment of the Redemption Price, the day on which such Default is no longer continuing); and (y) if the ~~relevant Conversion~~ related Redemption Date occurs on or after ~~September 1~~November 15, ~~2025~~2028, ~~no later than September 1~~then such Settlement Method must be the same Settlement Method that applies to all conversions with a Conversion Date that occurs on or after November 15, ~~2025).~~ 2028. (iv) If the Company does not timely elect a Settlement Method ~~prior~~ with respect to the ~~deadline set forth in the immediately preceding sentence~~conversion of any Note, then the Company ~~shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall~~ will be deemed to have elected the Default Settlement Method. If the Company timely elects Combination Settlement in with respect to the conversion of ~~its Conversion Obligation~~any Note but does not timely notify the converting Holder of the applicable Specified Dollar Amount, ~~and~~ then the Specified Dollar Amount ~~per~~ for such conversion will be deemed to be $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If For the ~~Company delivers~~ avoidance of doubt, the Company’s failure to timely elect a Settlement ~~Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a~~ Method or specify the applicable Specified Dollar Amount ~~per $1,000 principal amount~~ will not constitute a Default or Event of ~~Notes in~~ Default. (v) The Company will have the right, exercisable at its election by sending notice of such ~~Settlement Notice,~~ exercise to the ~~Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed~~ Holders (with a copy to ~~be $1,000. By notice to Holders of the Notes,~~ the Trustee and the Conversion ~~Agent (if other than the Trustee~~Agent), to irrevocably fix the Settlement Method that will apply to all conversions of Notes with a Conversion Date that occurs on or after the date such notice is sent to Holders, provided, in all cases, that (w) such Settlement Method must be a Settlement Method that the Company ~~may~~is then permitted to elect (for the avoidance of doubt, ~~prior~~ including pursuant to, and subject to, the other provisions of this Section 13.02(a)); (x) no such irrevocable election will affect any Settlement Method theretofore elected (or deemed to ~~September 1, 2025, at its option, irrevocably elect to satisfy its Conversion Obligation~~ be elected) with respect to any Note pursuant to this Indenture; (y) in no event will the ~~Notes through a~~ Company elect (whether directly or by eliminating all other Settlement Methods) Combination Settlement with a Specified Dollar Amount that is less than $1,000 per $1,000 principal amount of ~~Notes of $1,000 for all Conversion Dates occurring subsequent to delivery of~~ Notes; and (z) upon any such ~~notice. Not later than three Business Days after providing notice to Holders~~irrevocable election, the ~~Trustee and the Conversion Agent (if other than the Trustee) of an irrevocable election with respect~~ Default Settlement Method will automatically be deemed to be set to the Settlement Method ~~as described in~~ so fixed. Such notice, if sent, must set forth the ~~immediately preceding sentence, the Company shall issue a Current Report on Form 8-K or press release or otherwise provide public disclosure in a manner compliant with Regulation FD announcing~~ applicable Settlement Method and expressly state that the ~~Company has made~~ election is irrevocable and applicable to all conversions of Notes with a Conversion Date that occurs on or after the date such ~~irrevocable election~~notice is sent to Holders. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this ~~Second Supplemental~~ Indenture or the Notes, including pursuant to Section ~~9.02(i). However~~10.01(j) (it being understood, however, that the Company ~~may, nonetheless,~~ may nonetheless choose to execute such an amendment at its option). (ivvi) ~~The cash~~If the Company changes the Default Settlement Method pursuant to the proviso to the definition of such term or irrevocably fixes the Settlement Method pursuant to Section 13.02(a)(v), ~~Common Shares~~ then the Company will either post the Default Settlement Method or ~~combination of cash and Common Shares~~ fixed Settlement Method, as applicable, on its website or disclose the same in ~~respect of~~ a Current Report on Form 8-K (or any ~~conversion of Notes (~~successor form) that is filed with the ~~“Settlement Amount”) shall be computed as follows:~~SEC. (Ab) ~~if the Company elects~~ Subject to ~~satisfy its Conversion Obligation in respect of such conversion by Physical Settlement~~Section 13.03(b) and Section 13.07(a), the ~~Company shall deliver to the converting Holder~~ type and amount of consideration due in respect of each $1,000 principal amount of ~~Notes being~~ a Note to be converted ~~a number of Common Shares equal to the Conversion Rate in effect on the Conversion Date;~~will be determined as follows: (Bi) if ~~the Company elects~~ Cash Settlement applies to ~~satisfy its Conversion Obligation in respect of~~ such ~~conversion by Cash Settlement~~conversion, ~~the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted~~ cash in an amount equal to the sum of the Daily Conversion Values for each of VWAP Trading Day in the ~~50 consecutive Trading Days during the related~~ Observation ~~Period~~Period for such conversion; ~~and~~or (Cii) if ~~the Company elects~~ Combination Settlement applies to such conversion, consideration consisting, subject to Section 13.02(k), of (~~or is deemed to have elected~~x) ~~to satisfy its Conversion Obligation in respect~~ a number of ~~such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect~~ shares of ~~each $1,000 principal amount of Notes being converted, a Settlement Amount~~ Common Stock equal to the sum of the Daily ~~Settlement~~ Share Amounts for each VWAP Trading Day in the Observation Period for such conversion; and (y) an amount of cash equal to the sum of the ~~50 consecutive~~ Daily Cash Amounts for each VWAP Trading ~~Days during the related~~ Day in such Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional Common Share, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional Common Shares. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (bc) Subject to Section ~~11.02(e~~13.02(f), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the ~~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 ~~11.02(h~~13.02(i) and, if required, pay all transfer and similar taxes, if any as provided in Sections 13.02(e) or (f), and (ii) in the case of a Physical Note or when required by Applicable Procedures in effect at that time in the case of a Global Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile 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 (which must be in an Authorized Denomination) and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common ~~Shares~~ Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer ~~documents~~ documents, (4) if required, pay all transfer or similar taxes and (45) if required, pay funds equal to interest payable on the next Interest Payment Date ~~to which such Holder is not entitled~~ as set forth in Section ~~11.02(h~~13.02(i). The ~~Trustee (and if different, the~~ Conversion ~~Agent)~~ Agent shall notify the Company of any conversion pursuant to this Article ~~11 on the Conversion Date for such conversion~~13. No Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such ~~Holder~~ Hxxxxx has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and ~~has~~ not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~12.03~~14.02. Nothing herein shall preclude any withholding of tax required by law. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall (to the extent permitted by the applicable rules of the Depositary, in the case of Global Notes) be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered~~, subject, in the case of Global Notes, to the rules of the applicable Depositary~~. (cd) A Except as provided in Section 13.03(b) and Section 13.07(a), upon conversion of any Note, the Company will pay or deliver, as applicable, the consideration due upon conversion of any Note on or before the second Business Day immediately after the last VWAP Trading Day of such Observation Period. Subject to Section 13.02(i) and Section 13.02(j), a Note shall be deemed to have been converted immediately prior to the ~~close~~ Close of ~~business~~ Business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (bc) above. Except as set forth in Section 11.03(b) and Section 11.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver ~~(if applicable)~~ to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be ~~entitled, in certificate form or in book-entry format,~~ entitled in satisfaction of the Company’s Conversion Obligation. (de) In case any Note shall be surrendered for partial conversion, the Company (1) in the case of a Global Note, shall cause the principal balance of a Global Note to be adjusted in accordance with the procedures of the Depositary in effect at that time or (2) in the case of a Physical Note, shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in ~~authorized denominations~~ Authorized Denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder ~~but, if required by the Company or Trustee,~~ but with payment of a sum sufficient to cover any ~~documentary, stamp or similar issue or~~ transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued ~~upon~~ in connection with such partial conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (ef) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue or delivery of any shares of Common ~~Shares~~ Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common ~~Shares~~ Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (fg) Except as provided in Section ~~11.04~~13.04, no adjustment shall be made for dividends on any ~~Common Shares~~ shares issued upon the conversion of any Note as provided in this Article 1113. (gh) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (hi) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below~~, and the Company shall not adjust the Conversion Rate to adjust 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 excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excluding, ~~the relevant~~ such Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common ~~Shares~~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~~ Close of ~~business~~ Business on a Regular Record Date, Holders of such Notes as of the ~~close~~ Close of ~~business~~ Business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period ~~from~~ after the ~~close~~ Close of ~~business~~ Business on any Regular Record Date to the ~~open~~ Open of ~~business~~ Business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of such interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so converted; ~~provided~~ provided, however, that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and prior to the Business Day immediately following the corresponding Interest Payment Date and the conversion occurs after such Regular Record Date and prior to such Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date and the conversion occurs after such Regular Record Date and prior to the Business Day immediately following such Interest Payment Date; or (34) to the extent of any Additional Interest or Defaulted Amounts, if any Additional Interest or Defaulted Amounts ~~exist~~ exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date regardless of whether their Notes have been converted following such Regular Record Date. (ij) The Person in whose name the certificate for (or other evidence representing) any shares of Common ~~Shares shall be issuable~~ 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 (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the~~ last VWAP Trading Day of the relevant Observation ~~Period (if the Company elects (or is deemed to have elected) to satisfy the related Conversion Obligation by Combination Settlement), as the case may be~~Period. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (jk) The Company shall not issue any fractional share of Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of ~~delivering~~ any fractional share of Common ~~Shares~~ Stock issuable upon conversion based on the Daily VWAP ~~for the relevant Conversion Date (in the case of Physical Settlement) or based~~ on the ~~Daily~~ last VWAP ~~for the last~~ Trading Day of the ~~relevant~~ applicable Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of Common Shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional Common Shares remaining after such computation shall be paid in cashPeriod.

Appears in 1 contract

Samples: Indenture (Pacira BioSciences, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this ~~Section 11.02~~‎Section 14.02, ~~Section 11.03(b~~‎Section 14.03(b) and ~~Section 11.07(a~~‎Section 14.07(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j‎(j) of this ~~Section 11.02~~ ‎Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j‎(j) of this ~~Section 11.02~~ ‎Section 14.02 (“Combination Settlement”), at its election, as set forth in this ~~Section 11.02~~‎Section 14.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~September 1~~December 15, ~~2025~~ 2022 shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs on or after ~~September 1~~December 15, ~~2025~~2022, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion Date (or the period described in the third immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the ~~Company~~Company shall inform the Trustee and, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the close of business on the ~~second~~ first VWAP Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs on or after ~~September 1~~December 15, ~~2025~~2022, no later than ~~September 1~~December 15, ~~2025~~2022). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. By notice to Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 1, 2025, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through a Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 for all Conversion Dates occurring subsequent to delivery of such notice. Not later than three Business Days after providing notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee) of an irrevocable election with respect to the Settlement Method as described in the immediately preceding sentence, the Company shall issue a Current Report on Form 8-K or press release or otherwise provide public disclosure in a manner compliant with Regulation FD announcing that the Company has made such irrevocable election. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its option. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of Common Shares equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional Common Share, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional Common Shares. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section 11.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 11.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any 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 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 11.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 12.03. 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, subject, in the case of Global Notes, to the rules of the applicable Depositary. (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 11.03(b) and Section 11.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any Common Shares are due to converting Holders, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of Common Shares to which such Holder shall be entitled, in certificate form or in book-entry format, in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company (1) in the case of a Global Note, shall cause the principal balance of a Global Note to be adjusted in accordance with the procedures of the Depositary in effect at that time or (2) in the case of a Physical Note, shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any Common Shares upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the 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 immediately preceding sentence. (f) Except as provided in Section 11.04, no adjustment shall be made for dividends on any Common Shares issued upon the conversion of any Note as provided in this Article 11. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below, and the Company shall not adjust the Conversion Rate to adjust 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 excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and Common Shares, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable, on such Interest Payment Date, on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts exist at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name 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 (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects (or is deemed to have elected) to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional Common Shares upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Common Shares issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of Common Shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional Common Shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Samples: Indenture (Live Nation Entertainment, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~13.02, Section ~~11.03(b~~13.03(b) and Section ~~11.07(a~~13.07(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of ~~delivering~~ any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 13.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of ~~delivering~~ any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 13.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~13.02. (i) All conversions ~~for which the relevant Conversion Date occurs~~ occurring on or after ~~September 1~~December 15, ~~2025~~ 2015 shall be settled using the same Settlement Method. (ii) ~~Except for any conversions for which the relevant Conversion Date occurs on or after September 1~~Prior to December 15, ~~2025~~2015, the Company shall use the same Settlement Method for all conversions ~~with~~ occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions ~~with~~ that occur on different Conversion Dates. (iii) If, in respect of any Conversion Date (or any conversions of Notes occurring during the period ~~described in~~ beginning on, and including, December 15, 2015 and ending on, and including, the ~~third~~ Scheduled Trading Day immediately ~~succeeding set of parentheses~~preceding the Maturity Date, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the close of business on the ~~second~~ Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions ~~for which the relevant Conversion Date occurs~~ occurring on or after ~~September 1~~December 15, ~~2025~~2015, no later than ~~September 1~~December 15, ~~2025~~2015). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar ~~Amount per $1,000 principal amount of Notes~~Amount. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount ~~per $1,000 principal amount of Notes~~ in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. By notice to Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 1, 2025, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through a Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 for all Conversion Dates occurring subsequent to delivery of such notice. Not later than three Business Days after providing notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee) of an irrevocable election with respect to the Settlement Method as described in the immediately preceding sentence, the Company shall issue a Current Report on Form 8-K or press release or otherwise provide public disclosure in a manner compliant with Regulation FD announcing that the Company has made such irrevocable election. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its option. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed by the Company as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted ~~cash in~~ an amount in cash equal to the sum of the Daily Conversion Values for each of the 50 15 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 15 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of ~~delivering~~ any fractional ~~Common Share~~share, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of ~~delivering~~ fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~13.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~11.02(h~~13.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common ~~Shares~~ 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 ~~11.02(h~~13.02(h). The Trustee (~~and~~ and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 13 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such ~~Holder~~ Xxxxxx has also delivered a Fundamental Change Repurchase Notice to the ~~Company~~ Paying Agent in respect of such Notes and ~~has~~ not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~12.03~~14.02. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered~~, subject, in the case of Global Notes, to the rules of the applicable Depositary~~. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as ~~set forth~~ provided in Section ~~11.03(b~~13.03(b) and in Section ~~11.07(a)~~13.07, the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the ~~second~~ third Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the ~~second~~ third Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver ~~(if applicable) to the Conversion Agent or~~ to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be ~~entitled, in certificate form or in book-entry format,~~ entitled in satisfaction of the portion of the Company’s Conversion ~~Obligation~~Obligation that consists of shares of Common Stock, and, on or prior to such issuance, the Company shall give the Conversion Agent notice of the number of shares of Common Stock being so issued and the method by which the issuance shall take place. Any required funds due to a converting Holder in connection with a Cash Settlement or Combination Settlement shall be delivered to the Paying Agent and such Holder, or such Holder’s nominee or nominees, in accordance with the procedures set forth in Section 14.03. (d) In case any Note shall be surrendered for partial conversion, the Company (1) in the case of a Global Note, shall cause the principal balance of a Global Note to be adjusted in accordance with the procedures of the Depositary in effect at that time or (2) in the case of a Physical Note, 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 or similar issue or transfer tax due on the issue of any shares of Common ~~Shares~~ Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common ~~Shares~~ Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section ~~11.04~~13.04, no adjustment shall be made for dividends on any ~~Common Shares~~ shares issued upon the conversion of any Note as provided in this Article 1114. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below~~, and the Company shall not adjust the Conversion Rate to adjust 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 ~~excluding~~not including, the ~~relevant~~ Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~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 ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts exist at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the certificate for any shares of Common ~~Shares shall be issuable~~ Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Combination Settlement), as the case may be, in each case solely for the purpose of receiving or participating in any dividend, distribution, issuance, share split or combination, tender or exchange offer or any other event that would lead to a Conversion Rate adjustment as described in Section 13.04. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of ~~delivering~~ any fractional share of Common ~~Shares~~ Stock issuable upon conversion based on the Daily VWAP ~~for~~ on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP ~~for~~ on the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of ~~Common Shares~~ shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the ~~relevant~~ applicable Observation Period and any fractional ~~Common Shares~~ shares remaining after such computation shall be paid in cash. (k) Notwithstanding anything to the contrary herein, no Holder shall be entitled to receive shares of Common Stock upon conversion to the extent (but only to the extent) that such receipt would cause such converting Holder to become, directly or indirectly, a “beneficial owner” (within the meaning of Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) of more than 5.0% of the shares of Common Stock outstanding at such time (the “Limitation”). Any purported delivery of shares of Common Stock upon conversion of Notes shall be void and have no effect to the extent (but only to the extent) that such delivery would result in the converting Holder becoming the beneficial owner of more than the Limitation. If any delivery of shares of Common Stock owed to a Holder upon conversion of Notes is not made, in whole or in part, as a result of the Limitation, the Company’s obligation to make such delivery shall not be extinguished and the Company shall deliver such shares as promptly as practicable after any such converting Holder gives notice to the Company that such delivery would not result in it being the beneficial owner of more than 5.0% of the shares of Common Stock outstanding at such time. The Limitation shall no longer apply following the effective date of any Fundamental Change.

Appears in 1 contract

Samples: Indenture (Ares Capital Corp)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~14.02, Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), upon conversion of any Note, the Company ~~shall~~ shall, at its election, pay or deliver, as the case may be, to the converting Holder, in ~~respect~~ full satisfaction of ~~each $1,000 principal amount of Notes being converted~~its Conversion Obligation, cash (“Cash Settlement”), shares of Common ~~Shares, together with cash, if applicable, in lieu of delivering any fractional Common Shares in accordance with subsection (j) of this Section 11.02~~ Stock (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares, together with cash, if applicable, in lieu of delivering any fractional Common Shares in accordance with subsection (j) of this Section 11.02~~ Stock (“Combination Settlement”), ~~at its election,~~ as set forth in this Section ~~11.02~~14.02. (i) All conversions for which the relevant Conversion Date occurs on or after September 1, ~~2025~~ 2027, and all conversions of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period, shall be settled using the same Settlement ~~Method.~~ Method (~~ii)~~ including the same relative proportion of cash and/or shares of Common Stock). Except for any conversions for which the relevant Conversion Date occurs on or after September 1, ~~2025~~2027 or any conversions of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period, the Company shall use the same Settlement Method (including the same relative proportion of cash and/or shares of Common Stock) for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (~~iii~~ii) ~~If, in respect of any Conversion Date (or~~ If the ~~period described in the third immediately succeeding set of parentheses, as the case may be)~~Company elects a Settlement Method, the Company ~~elects~~ shall deliver notice to ~~deliver a notice (~~Holders through the ~~“Settlement Notice”)~~ Conversion Agent of ~~the relevant~~ such Settlement Method ~~in respect of such Conversion Date (or such period, as~~ the ~~case may be), the Company, through the Trustee, shall deliver such Settlement Notice to converting Holders~~ Company has selected no later than the close of business on the second VWAP Trading Day immediately following the ~~relevant~~ related Conversion Date (~~or,~~ or (i) in the case of any conversions for which the relevant Conversion Date occurs on or after September 1, ~~2025~~2027, no later than September 1, ~~2025~~2027 or (ii) in the case of any conversions of Called Notes for which the Conversion Date occurs during the related Redemption Period, in such Notice of Redemption) (in each case, the “Settlement Method Election Deadline”). If the Company does not timely elect a Settlement Method ~~prior~~ with respect to ~~the deadline set forth in the immediately preceding sentence~~any conversion on such Conversion Date or during such period, the Company shall no longer have the right to elect ~~Cash~~ a Settlement ~~or Physical Settlement~~ Method and the Company shall be deemed to have elected the Default Settlement Method with respect to such conversion. If the Company timely elects Combination Settlement in with respect to a conversion but does not timely notify the converting Holder through the Trustee of ~~its Conversion Obligation~~the applicable Specified Dollar Amount, ~~and~~ then the Specified Dollar Amount ~~per~~ for such conversion shall be deemed to be $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. By notice to Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 1, 2025, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through a Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 for all Conversion Dates occurring subsequent to delivery of such notice. Not later than three Business Days after providing notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee) of an irrevocable election with respect to the Settlement Method as described in the immediately preceding sentence, the Company shall issue a Current Report on Form 8-K or press release or otherwise provide public disclosure in a manner compliant with Regulation FD announcing that the Company has made such irrevocable election. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its option. (iv) The cash, Common Shares or combination of cash and Common Shares in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of Common Shares equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional Common Share, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional Common Shares. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section 11.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 11.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any 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 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 11.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 12.03. 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, subject, in the case of Global Notes, to the rules of the applicable Depositary. (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 11.03(b) and Section 11.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any Common Shares are due to converting Holders, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of Common Shares to which such Holder shall be entitled, in certificate form or in book-entry format, in satisfaction of the Company’s ~~Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion,~~ failure to timely elect a Settlement Method or specify the Company (1) in the case of a Global Note, shall cause the principal balance of a Global Note to be adjusted in accordance with the procedures of the Depositary in effect at that time or (2) in the case of a Physical Note, shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any Common Shares upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the 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 immediately preceding sentence. (f) Except as provided in Section 11.04, no adjustment shall be made for dividends on any Common Shares issued upon the conversion of any Note as provided in this Article 11. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon conversion, a Holder applicable Specified Dollar Amount 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 to adjust 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 excluding, the relevant Conversion Date. As constitute a result, accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and Common Shares, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable, on such Interest Payment Date, on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts exist at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date regardless of whether their Notes have been converted following such Regular Record DateDefault under this Indenture. (i) The Person in whose name 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 (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects (or is deemed to have elected) to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional Common Shares upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Common Shares issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of Common Shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional Common Shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Samples: Indenture (Uniti Group Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~13.02, Section ~~11.03(b~~13.03(b) and Section ~~11.07(a~~13.07(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of ~~delivering~~ any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 13.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of ~~delivering~~ any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 13.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~13.02. (i) All conversions ~~for which the relevant Conversion Date occurs~~ occurring on or after September 115, ~~2025~~ 2016 shall be settled using the same Settlement Method. (ii) ~~Except for any conversions for which the relevant Conversion Date occurs on or after~~ Prior to September 115, ~~2025~~2016, the Company shall use the same Settlement Method for all conversions ~~with~~ occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions ~~with~~ that occur on different Conversion Dates. (iii) If, in respect of any Conversion Date (or any conversions of Notes occurring during the period ~~described in~~ beginning on, and including, September 15, 2016 and ending on, and including, the ~~third~~ Scheduled Trading Day immediately ~~succeeding set of parentheses~~preceding the Maturity Date, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the close of business on the ~~second~~ Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions ~~for which the relevant Conversion Date occurs~~ occurring on or after September 115, ~~2025~~2016, no later than September 115, ~~2025~~2016). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar ~~Amount per $1,000 principal amount of Notes~~Amount. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount ~~per $1,000 principal amount of Notes~~ in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. By notice to Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 1, 2025, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through a Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 for all Conversion Dates occurring subsequent to delivery of such notice. Not later than three Business Days after providing notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee) of an irrevocable election with respect to the Settlement Method as described in the immediately preceding sentence, the Company shall issue a Current Report on Form 8-K or press release or otherwise provide public disclosure in a manner compliant with Regulation FD announcing that the Company has made such irrevocable election. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its option. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed by the Company as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted ~~cash in~~ an amount in cash equal to the sum of the Daily Conversion Values for each of the 50 15 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 15 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of ~~delivering~~ any fractional ~~Common Share~~share, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of ~~delivering~~ fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~13.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~11.02(h~~13.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common ~~Shares~~ 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 ~~11.02(h~~13.02(h). The Trustee (~~and~~ and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 13 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such ~~Holder~~ Xxxxxx has also delivered a Fundamental Change Repurchase Notice to the ~~Company~~ Paying Agent in respect of such Notes and ~~has~~ not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~12.03~~14.02. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered~~, subject, in the case of Global Notes, to the rules of the applicable Depositary~~. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as ~~set forth~~ provided in Section ~~11.03(b~~13.03(b) and in Section ~~11.07(a)~~13.07, the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the ~~second~~ third Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the ~~second~~ third Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver ~~(if applicable) to the Conversion Agent or~~ to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be ~~entitled, in certificate form or in book-entry format,~~ entitled in satisfaction of the portion of the Company’s Conversion ~~Obligation~~Obligation that consists of shares of Common Stock, and, on or prior to such issuance, the Company shall give the Conversion Agent notice of the number of shares of Common Stock being so issued and the method by which the issuance shall take place. Any required funds due to a converting Holder in connection with a Cash Settlement or Combination Settlement shall be delivered to the Paying Agent and such Holder, or such Holder’s nominee or nominees, in accordance with the procedures set forth in Section 14.03. (d) In case any Note shall be surrendered for partial conversion, the Company (1) in the case of a Global Note, shall cause the principal balance of a Global Note to be adjusted in accordance with the procedures of the Depositary in effect at that time or (2) in the case of a Physical Note, 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 or similar issue or transfer tax due on the issue of any shares of Common ~~Shares~~ Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common ~~Shares~~ Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section ~~11.04~~13.04, no adjustment shall be made for dividends on any ~~Common Shares~~ shares issued upon the conversion of any Note as provided in this Article 1114. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below~~, and the Company shall not adjust the Conversion Rate to adjust 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 ~~excluding~~not including, the ~~relevant~~ Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~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 ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts exist at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the certificate for any shares of Common ~~Shares shall be issuable~~ Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Combination Settlement), as the case may be, in each case solely for the purpose of receiving or participating in any dividend, distribution, issuance, share split or combination, tender or exchange offer or any other event that would lead to a Conversion Rate adjustment as described in Section 13.04. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of ~~delivering~~ any fractional share of Common ~~Shares~~ Stock issuable upon conversion based on the Daily VWAP ~~for~~ on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP ~~for~~ on the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of ~~Common Shares~~ shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the ~~relevant~~ applicable Observation Period and any fractional ~~Common Shares~~ shares remaining after such computation shall be paid in cash. (k) Notwithstanding anything to the contrary herein, no Holder shall be entitled to receive shares of Common Stock upon conversion to the extent (but only to the extent) that such receipt would cause such converting Holder to become, directly or indirectly, a “beneficial owner” (within the meaning of Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) of more than 5.0% of the shares of Common Stock outstanding at such time (the “Limitation”). Any purported delivery of shares of Common Stock upon conversion of Notes shall be void and have no effect to the extent (but only to the extent) that such delivery would result in the converting Holder becoming the beneficial owner of more than the Limitation. If any delivery of shares of Common Stock owed to a Holder upon conversion of Notes is not made, in whole or in part, as a result of the Limitation, the Company’s obligation to make such delivery shall not be extinguished and the Company shall deliver such shares as promptly as practicable after any such converting Holder gives notice to the Company that such delivery would not result in it being the beneficial owner of more than 5.0% of the shares of Common Stock outstanding at such time. The Limitation shall no longer apply following the effective date of any Fundamental Change.

Appears in 1 contract

Samples: Indenture (Ares Capital Corp)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~14.02, Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~14.02. (i) All conversions ~~for which the relevant Conversion Date occurs~~ occurring on or after ~~September 1~~October 15, ~~2025~~ 2022 shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs on or after ~~September 1~~October 15, ~~2025~~2022, the Company shall use the same Settlement Method for all conversions ~~with~~ occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions ~~with~~ that occur on different Conversion Dates. (iii) If, in respect of any Conversion Date (or the period ~~described in the third immediately succeeding set of parentheses~~on or after October 15, 2022, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the ~~Company, through the Trustee,~~ Company shall deliver such Settlement Notice to converting ~~Holders~~ Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the ~~second~~ Scheduled Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions ~~for which the relevant Conversion Date occurs~~ occurring on or after ~~September 1~~October 15, ~~2025~~2022, no later than ~~September 1~~the close of business on Scheduled Trading Day immediately preceding October 15, ~~2025~~2022). If the Company does not timely elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement for such conversion or during such period and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. By notice to Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 1, 2025, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through a Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 for all Conversion Dates occurring subsequent to delivery of such notice. Not later than three Business Days after providing notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee) of an irrevocable election with respect to the Settlement Method as described in the immediately preceding sentence, the Company shall issue a Current Report on Form 8-K or press release or otherwise provide public disclosure in a manner compliant with Regulation FD announcing that the Company has made such irrevocable election. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its option. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 30 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 30 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common ~~Share~~Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time and, if required, pay funds equal to ~~interest~~ any Special Interest payable on the next Special Interest Payment Date to which such Holder is not entitled as set forth in Section ~~11.02(h~~14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a ~~facsimile~~ 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 shares of Common ~~Shares~~ 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~~ any Special Interest payable on the next Special Interest Payment Date to which such Holder is not entitled as set forth in Section ~~11.02(h~~14.02(h). The Trustee (~~and~~ and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 14 on the Conversion Date for such conversion. No ~~Notice of Conversion with respect to any~~ Notes may be surrendered for conversion by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~12.03~~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~~, subject, in the case of Global Notes, to the rules of the applicable Depositary~~. (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 ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the second Business Day immediately following the last Trading Day of the relevant Observation Period, in the case of any other Settlement Method; provided that, with respect to any Conversion Date occurring on or after October 15, 2022, (x) the Company will settle any such conversion for which Physical Settlement is applicable on the Maturity Date and (y) the Company will settle any such conversion for which Cash Settlement or Combination Settlement is applicable on the third Business Day immediately following the last Trading Day of the relevant Observation Period). If any shares of Common ~~Shares~~ Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver ~~(if applicable)~~ to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be ~~entitled, in certificate form or in book-entry format,~~ entitled in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company (1) in the case of a Global Note, shall cause the principal balance of a Global Note to be adjusted in accordance with the procedures of the Depositary in effect at that time or (2) in the case of a Physical Note, shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common ~~Shares~~ Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common ~~Shares~~ Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section ~~11.04~~14.04, no adjustment shall be made for dividends on any shares of Common ~~Shares~~ Stock issued upon the conversion of any Note as provided in this Article 1114. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid ~~interest~~Special Interest, if any, except as set forth below~~, and the Company shall not adjust the Conversion Rate to adjust 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~~Special Interest, if any, to, but excluding, the relevant Conversion Date. As a result, accrued and unpaid ~~interest~~Special Interest, if any, to, but excluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common ~~Shares~~Stock, any accrued and unpaid ~~interest~~ Special Interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a ~~Regular~~ Special Interest Record Date and prior to the open of business on the corresponding Special Interest Payment Date, Holders of such Notes as of the close of business on such ~~Regular~~ Special Interest Record Date will receive the full amount of ~~interest~~ Special Interest payable on such Notes on the corresponding Special Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any ~~Regular~~ Special Interest Record Date to the open of business on the immediately following Special Interest Payment Date must be accompanied by funds equal to the amount of ~~interest payable, on such~~ any Special Interest ~~Payment Date,~~ payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the ~~Regular~~ Special Interest Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a ~~Regular~~ Special Interest Record Date and on or prior to the Business Day immediately ~~following~~ succeeding the corresponding Special Interest Payment Date; or (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts ~~exist~~ exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the ~~Regular~~ Special Interest Record Date immediately preceding the Maturity Date (if and to the extent that Special Interest is payable on the Maturity Date) shall receive the full ~~interest~~ Special Interest payment due on the Maturity Date in cash regardless of whether their Notes have been converted following such ~~Regular~~ Special Interest Record Date. (i) The Person in whose name the certificate for any shares of Common ~~Shares shall be issuable~~ Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common ~~Shares~~ Stock issuable upon conversion based on the Daily VWAP ~~for~~ on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP ~~for~~ on the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of ~~Common Shares~~ shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional ~~Common Shares~~ shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Samples: Indenture (Nutanix, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~14.02, Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~14.02. (i) All conversions ~~for which the relevant Conversion Date occurs~~ occurring on or after ~~September 1~~March 15, ~~2025~~ 2020 shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs on or after ~~September 1~~March 15, ~~2025~~2020, the Company shall use the same Settlement Method for all conversions ~~with~~ occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions ~~with~~ that occur on different Conversion ~~Dates~~Days. (iii) If, in respect of any Conversion Date (or the period described in the third immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the close of business on the ~~second~~ Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs on or after ~~September 1~~March 15, ~~2025~~2020, no later than ~~September 1~~the close of business on Scheduled Trading Day immediately preceding March 15, ~~2025~~2020). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. By notice to Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 1, 2025, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through a Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 for all Conversion Dates occurring subsequent to delivery of such notice. Not later than three Business Days after providing notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee) of an irrevocable election with respect to the Settlement Method as described in the immediately preceding sentence, the Company shall issue a Current Report on Form 8-K or press release or otherwise provide public disclosure in a manner compliant with Regulation FD announcing that the Company has made such irrevocable election. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its option. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 80 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 80 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common ~~Share~~Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~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 ~~11.02(h~~14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile 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 shares of Common ~~Shares~~ 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, including signature guarantees), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer ~~documents~~ documents, including signature guarantees 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 ~~11.02(h~~14.02(h). The Trustee (~~and~~ and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such ~~Holder~~ Xxxxxx has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~12.03~~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~~, subject, in the case of Global Notes, to the rules of the applicable Depositary~~. (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 11.03(b) and Section 11.07(a), the~~ The Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the ~~second~~ third Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the ~~second~~ third Business Day immediately following the last Trading Day of the relevant Observation Period, in the case of any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver ~~(if applicable)~~ to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be ~~entitled, in certificate form or in book-entry format,~~ entitled in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company (1) in the case of a Global Note, shall cause the principal balance of a Global Note to be adjusted in accordance with the procedures of the Depositary in effect at that time or (2) in the case of a Physical Note, shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common ~~Shares~~ Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common ~~Shares~~ Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section ~~11.04~~14.04, no adjustment shall be made for dividends on any shares of Common ~~Shares~~ Stock issued upon the conversion of any Note as provided in this Article 1114. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below~~, and the Company shall not adjust the Conversion Rate to adjust 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 ~~excluding~~not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~not including, the relevant Conversion Date shall be deemed to be paid in full rather than ~~cancelled~~canceled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the ~~Business Day immediately following the~~ corresponding Interest Payment Date; or (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts ~~exist~~ exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date 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 applicable Interest Payment Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the certificate for any shares of Common ~~Shares shall be issuable~~ Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common ~~Shares~~ Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of ~~Common Shares~~ shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional ~~Common Shares~~ shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Samples: Indenture (TTM Technologies Inc)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~12.02, Section ~~11.03(b~~12.03(b) and Section ~~11.07(a~~12.07(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting ~~Holder~~Holder through the Conversion Agent, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 12.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 12.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~12.02. (i) All conversions for which the relevant Conversion Date occurs on or after September 1, ~~2025~~ 2021 shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs on or after September 1, ~~2025~~2021, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion Date (~~or the period described~~ or, in the ~~third immediately succeeding set~~ case of ~~parentheses~~any conversions for which the relevant Conversion Date occurs on or after September 1, ~~as the case may be~~2021), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or all such ~~period~~conversions, as the case may be), the ~~Company, through the Trustee,~~ Company shall deliver such Settlement Notice to converting ~~Holders~~ Holders, and to the Conversion Agent in writing, no later than the close of business on the ~~second~~ Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs on or after September 1, ~~2025~~2021, no later than September 1, ~~2025~~2021). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement for such conversion (or, in the case of conversions for which the relevant Conversion Date occurs on or after September 1, 2021, for all such conversions) and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. ~~Such~~ Each Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation for a conversion (or, in the case of conversions for which the relevant Conversion Date occurs on or after September 1, 2021, for all such conversions), but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. ~~By notice to Holders~~ For the avoidance of ~~the Notes~~doubt, ~~the Trustee and the Conversion Agent (~~if ~~other than the Trustee),~~ the Company ~~may,~~ does not elect a Settlement Method on or prior to September 1, ~~2025~~2021 for all conversions for which the relevant Conversion Date occurs on or after September 1, ~~at its option~~2021, ~~irrevocably elect~~ the Company shall be deemed to ~~satisfy its Conversion Obligation with respect to the Notes through a~~ have elected Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of equal to $1,000 for all ~~Conversion Dates occurring subsequent to delivery of~~ such notice. Not later than three Business Days after providing notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee) of an irrevocable election with respect to the Settlement Method as described in the immediately preceding sentence, the Company shall issue a Current Report on Form 8-K or press release or otherwise provide public disclosure in a manner compliant with Regulation FD announcing that the Company has made such irrevocable election. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its optionconversions. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed by the Company as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver through the Conversion Agent to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the applicable Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay through the Conversion Agent to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 70 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, through the Conversion Agent in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 70 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the relevant Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common ~~Share~~Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~12.02(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 ~~11.02(h~~12.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common ~~Shares~~ 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 ~~11.02(h~~12.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 12 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~12.03~~13.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered~~, subject, in the case of Global Notes, to the rules of the applicable Depositary~~. (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~~above (the “Conversion Date”). Except as set forth in Section ~~11.03(b~~12.03(b) and Section ~~11.07(a~~12.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on no later than the ~~second Business~~ third Scheduled Trading Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on no later than the ~~second Business~~ third Scheduled Trading Day immediately following the last Trading Day of the relevant Observation Period, in the case of any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver ~~(if applicable)~~ to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be ~~entitled, in certificate form or in book-entry format,~~ entitled in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company (1) in the case of a Global Note, shall cause the principal balance of a Global Note to be adjusted in accordance with the procedures of the Depositary in effect at that time or (2) in the case of a Physical Note, shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common ~~Shares~~ Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Company or the Conversion Agent may refuse to deliver the certificates representing the shares of Common ~~Shares~~ Stock being issued in a name other than the Holder’s name until the ~~Trustee~~ Company receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section ~~11.04~~12.04, no adjustment shall be made for dividends on any shares of Common ~~Shares~~ Stock issued upon the conversion of any Note as provided in this Article 1112. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below~~, and the Company shall not adjust the Conversion Rate to adjust 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 ~~excluding~~not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~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 ~~Shares~~Stock, accrued and unpaid interest ~~will~~ shall be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date ~~will~~ shall receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so 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 second Scheduled Trading Day immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (3) to the extent of any ~~Defaulted Amounts~~overdue interest, if any ~~Defaulted Amounts exist~~ overdue interest exists at the time of conversion with respect to such ~~Note~~Notes. Therefore, for the avoidance of doubt, all Holders at the close of ~~record~~ business on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name ~~the~~ any shares of Common ~~Shares~~ 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 (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common ~~Shares~~ Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of ~~Common Shares~~ shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional ~~Common Shares~~ shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Samples: First Supplemental Indenture (Atlas Air Worldwide Holdings Inc)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~14.02, Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), upon conversion of any Note, the Company shall ~~pay~~ satisfy its Conversion Obligation by paying or ~~deliver~~delivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~14.02. (i) All conversions ~~for which the relevant Conversion Date occurs~~ occurring (x) on or after ~~September 1~~December 15, ~~2025~~ 2024 or (y) during a Redemption Period shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs (x) on or after ~~September 1~~December 15, ~~2025~~2024 or (y) during a Redemption Period, the Company shall use the same Settlement Method for all conversions ~~with~~ occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions ~~with~~ that occur on different Conversion Dates. (iii) If, in respect of any Conversion Date (or ~~the period described~~ in the ~~third~~ case of any conversions occurring (x) during a Redemption Period, in such Redemption Notice or (y) on or after December 15, 2024, no later than the close of business on the Business Day immediately ~~succeeding set of parentheses~~preceding December 15, ~~as the case may be~~2024), the Company elects to a Settlement Method, the Company shall deliver a written notice (the “Settlement Notice”) of the ~~relevant~~ Settlement Method so elected in respect of such Conversion Date (or such period, as the case may be~~), the Company, through the Trustee, shall deliver such Settlement Notice~~ ) to converting Holders through the Trustee no later than the close of business on the ~~second~~ Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions ~~for which the relevant Conversion Date occurs~~ occurring (x) during a Redemption Period, in such Redemption Notice or (y) on or after ~~September 1~~December 15, ~~2025~~2024, no later than ~~September 1~~the close of business on the Business Day immediately preceding December 15, ~~2025~~2024). If the Company does not timely elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement for such conversion or during such period and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. By notice to Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 1, 2025, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through a Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 for all Conversion Dates occurring subsequent to delivery of such notice. Not later than three Business Days after providing notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee) of an irrevocable election with respect to the Settlement Method as described in the immediately preceding sentence, the Company shall issue a Current Report on Form 8-K or press release or otherwise provide public disclosure in a manner compliant with Regulation FD announcing that the Company has made such irrevocable election. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its option. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 40 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 40 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common ~~Share~~Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time for converting a beneficial interest in a Global Note and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~11.02(h~~14.02(h) (and, if required, pay all transfer or similar taxes, if any, as set forth in Section 14.02(d) and Section 14.02(e)) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a ~~facsimile~~ 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 shares of Common ~~Shares~~ 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 the interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~11.02(h~~14.02(h). The Trustee (~~and~~ and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 14 on the Conversion Date for such conversion. No ~~Notice of Conversion with respect to any~~ Notes may be surrendered for conversion by a Holder thereof if such ~~Holder~~ Xxxxxx has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~12.03~~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~~, subject, in the case of Global Notes, to the rules of the applicable Depositary~~. (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 ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical ~~Settlement~~Settlement (provided that, with respect to any Conversion Date occurring on or after December 15, 2024, the Company shall settle any such conversion on the Maturity Date), or on the second Business Day immediately following the last Trading Day of the relevant Observation Period, in the case of any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver ~~(if applicable) to the Conversion Agent or~~ to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be ~~entitled, in certificate form or in book-entry format,~~ entitled in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company (1) in the case of a Global Note, shall cause the principal balance of a Global Note to be adjusted in accordance with the procedures of the Depositary in effect at that time or (2) in the case of a Physical Note, shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax or other similar governmental charge due on ~~the issue~~ any issuance of any shares of Common ~~Shares~~ Stock upon conversion, unless the tax is due because the Holder requests any such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common ~~Shares~~ Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section ~~11.04~~14.04, no adjustment shall be made for dividends on any shares of Common ~~Shares~~ Stock issued upon the conversion of any Note as provided in this Article 1114. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon conversion, a Holder shall not receive any separate ~~cash~~ payment for accrued and unpaid interest, if any, except as set forth ~~below, and~~ below in the ~~Company shall not adjust the Conversion Rate to adjust for any accrued and unpaid interest on the Notes~~fifth sentence of this paragraph. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately ~~following~~ succeeding the corresponding Interest Payment Date; (3) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date; or (34) to the extent of any ~~Defaulted Amounts~~overdue interest, if any ~~Defaulted Amounts exist~~ overdue interest exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the certificate for any shares of Common ~~Shares shall be issuable~~ Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common ~~Shares~~ Stock issuable upon conversion based on the Daily VWAP ~~for~~ on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP ~~for~~ on the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of ~~Common Shares~~ shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional ~~Common Shares~~ shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Samples: Indenture (Chegg, Inc)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~14.02, Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~14.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~September 1~~May 15, ~~2025~~ 2024 shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs on or after ~~September 1~~May 15, ~~2025~~2024, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion Date (or the period described in the third immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the ~~Company, through the Trustee,~~ Company shall deliver such Settlement Notice to converting Holders through the Trustee no later than the close of business on the second Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs on or after ~~September 1~~May 15, ~~2025~~2024, no later than ~~September 1~~May 15, ~~2025~~2024). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. By notice to Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 1, 2025, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through a Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 for all Conversion Dates occurring subsequent to delivery of such notice. Not later than three Business Days after providing notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee) of an irrevocable election with respect to the Settlement Method as described in the immediately preceding sentence, the Company shall issue a Current Report on Form 8-K or press release or otherwise provide public disclosure in a manner compliant with Regulation FD announcing that the Company has made such irrevocable election. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its option. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion ~~Rate in effect on the Conversion Date~~Rate; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 40 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 40 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common ~~Share~~Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time and, if required, pay funds equal to the interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~11.02(h~~14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile 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 shares of Common ~~Shares~~ 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 ~~11.02(h~~14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 12.03. 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, subject, in the case of Global Notes, to the rules of the applicable Depositary15.03. (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 ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to a converting ~~Holders~~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 shares of Common ~~Shares~~ Stock to which such Holder shall be entitled, in ~~certificate form or in~~ book-entry ~~format~~format through the Depositary, in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company (1) in the case of a Global Note, shall cause the principal balance of a Global Note to be adjusted in accordance with the procedures of the Depositary in effect at that time or (2) in the case of a Physical Note, shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common ~~Shares~~ Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common ~~Shares~~ Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section ~~11.04~~14.04, no adjustment shall be made for dividends on any shares of Common ~~Shares~~ Stock issued upon the conversion of any Note as provided in this Article 1114. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below~~, and the Company shall not adjust the Conversion Rate to adjust 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~~ Note, and accrued and unpaid interest, if any, to, but ~~excluding~~not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~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 ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts ~~exist~~ exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date or any Fundamental Change Repurchase Date described in clause (2) above shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted or repurchased, as applicable, following such Regular Record Date. (i) The Person in whose name the shares of Common ~~Shares~~ Stock shall be issuable upon conversion shall ~~be treated as a~~ become the stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common ~~Shares~~ Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of ~~Common Shares~~ shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional ~~Common Shares~~ shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Samples: Indenture (Sarepta Therapeutics, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~14.02, Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~14.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~September~~ June 1, ~~2025~~ 2026 shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs on or after ~~September~~ June 1, ~~2025~~2026, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion Date (or the period described in the third immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the close of business on the ~~second~~ Trading Day immediately following the ~~relevant~~ related Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs on or after ~~September~~ June 1, ~~2025~~2026, no later than ~~September~~ June 1, ~~2025~~2026). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to any conversion on the relevant Conversion Date or during the relevant period, and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. By notice to ~~Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee)~~Holders, the Company may, prior to ~~September~~ June 1, ~~2025~~2026, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through a Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 for all Conversion Dates occurring subsequent to delivery of such notice. Not later than three Business Days after providing notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee) of an irrevocable election with respect to the Settlement Method as described in the immediately preceding sentence, the Company shall issue a Current Report on Form 8-K or press release or otherwise provide public disclosure in a manner compliant with Regulation FD announcing that the Company has made such irrevocable election. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its option. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 40 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 40 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common ~~Share~~Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~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 ~~11.02(h~~14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a ~~facsimile~~ 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 shares of Common ~~Shares~~ 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 ~~11.02(h~~14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~12.03~~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~~, subject, in the case of Global Notes, to the rules of the applicable Depositary~~. (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 ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical ~~Settlement~~Settlement (provided that, with respect to any conversion following the Regular Record Date immediately preceding the Maturity Date where Physical Settlement applies to such conversion, the Company shall settle any such conversion on the Maturity Date), or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to a converting ~~Holders~~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 shares of Common ~~Shares~~ Stock to which such Holder shall be entitled, in ~~certificate form or in~~ book-entry ~~format~~format through the Depositary, in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company (1) in the case of a Global Note, shall cause the principal balance of a Global Note to be adjusted in accordance with the procedures of the Depositary in effect at that time or (2) in the case of a Physical Note, shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common ~~Shares~~ Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common ~~Shares~~ Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section ~~11.04~~14.04, no adjustment shall be made for dividends on any shares of Common ~~Shares~~ Stock issued upon the conversion of any Note as provided in this Article 1114. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below~~, and the Company shall not adjust the Conversion Rate to adjust 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 ~~excluding~~not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~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 ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts ~~exist~~ exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the shares of Common ~~Shares~~ 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 (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common ~~Shares~~ Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of ~~Common Shares~~ shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional ~~Common Shares~~ shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Samples: Indenture (Etsy Inc)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~13.02, Section ~~11.03(b) and~~ 13.04(b)and Section ~~11.07(a~~13.08(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 13.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 13.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~13.02. (i) All conversions ~~for which the relevant Conversion Date occurs~~ occurring on or after ~~September~~ March 1, ~~2025~~ 2018 shall be settled using the same Settlement Method. (ii) Except for any conversions ~~for which the relevant Conversion Date occurs~~ that occur on or after ~~September~~ March 1, ~~2025~~2018, the Company shall use the same Settlement Method for all conversions ~~with~~ occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions ~~with~~ that occur on different ~~Conversion Dates~~Trading Days. (iii) If, in respect of any Conversion Date (or ~~the period described in the third immediately succeeding set of parentheses~~for conversions occurring on or after March 1, 2018, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the Conversion Agent and the Trustee, shall deliver such Settlement Notice to converting Holders no later than the close of business on the ~~second~~ Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions ~~for which the relevant Conversion Date occurs~~ occurring on or after ~~September~~ March 1, ~~2025~~2018, no later than ~~September~~ the close of business on the Business Day immediately preceding March 1, ~~2025~~2018). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. By notice to Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 1, 2025, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through a Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 for all Conversion Dates occurring subsequent to delivery of such notice. Not later than three Business Days after providing notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee) of an irrevocable election with respect to the Settlement Method as described in the immediately preceding sentence, the Company shall issue a Current Report on Form 8-K or press release or otherwise provide public disclosure in a manner compliant with Regulation FD announcing that the Company has made such irrevocable election. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its option. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 25 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 25 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common ~~Share~~Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) in writing of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~13.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time (any instruction to convert transmitted to the Depositary shall be irrevocable) and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~11.02(h~~13.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common ~~Shares~~ 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 ~~11.02(h~~13.02(h). The Trustee (~~and~~ and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 XIII on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such ~~Holder~~ Xxxxxx has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and ~~has~~ not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~12.03~~14.02. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered~~, subject, in the case of Global Notes, to the rules of the applicable Depositary~~. (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 11.03(b) and Section 11.07(a), the~~ The Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the ~~second~~ third Business Day immediately following the relevant Conversion Date, if the Company elects Physical ~~Settlement~~Settlement (provided that, with respect to any Conversion Date occurring on or after March 1, 2018, settlement will occur on the Maturity Date) or on the ~~second~~ third Business Day immediately following the last Trading Day of the relevant Observation Period, in the case of any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver ~~(if applicable)~~ to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be ~~entitled, in certificate form or in book-entry format,~~ entitled in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company (1) in the case of a Global Note, shall cause the principal balance of a Global Note to be adjusted in accordance with the procedures of the Depositary in effect at that time or (2) in the case of a Physical Note, 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 or similar issue or transfer tax due on the issue of any shares of Common ~~Shares~~ Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common ~~Shares~~ Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section ~~11.04~~13.05, no adjustment shall be made for dividends on any shares of Common ~~Shares~~ Stock issued upon the conversion of any Note as provided in this Article 1113. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below~~, and the Company shall not adjust the Conversion Rate to adjust 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 ~~excluding~~not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~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 ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the ~~Business Day immediately following the~~ corresponding Interest Payment Date; or (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts ~~exist~~ exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the certificate for any shares of Common ~~Shares shall be issuable~~ Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common ~~Shares~~ Stock issuable upon conversion based on the Daily VWAP ~~for the relevant Conversion Date (in the case of Physical Settlement) or based~~ on ~~the Daily VWAP for~~ the last Trading Day of the relevant Observation Period; provided that if the Company elects Physical Settlement, the Company shall pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on the Daily VWAP on the relevant Conversion Date as if such Conversion Date were the last Trading Day of an Observation Period ~~(in the case of~~ upon Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of ~~Common Shares~~ shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation ~~Period~~ Period, and any fractional ~~Common Shares~~ shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Samples: Indenture (Netsuite Inc)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~13.02, Section ~~11.03(b~~13.03(b) and Section ~~11.07(a~~13.07(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of ~~delivering~~ any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 13.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of ~~delivering~~ any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 13.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~13.02. (i) All conversions ~~for which the relevant Conversion Date occurs~~ occurring on or after ~~September~~ February 1, ~~2025~~ 2022 shall be settled using the same Settlement Method. (ii) ~~Except for any conversions for which the relevant Conversion Date occurs on or after September~~ Prior to February 1, ~~2025~~2022, the Company shall use the same Settlement Method for all conversions ~~with~~ occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions ~~with~~ that occur on different Conversion Dates. (iii) If, in respect of any Conversion Date (or any conversions of Notes occurring during the period ~~described in~~ beginning on, and including, February 1, 2022 and ending on, and including, the ~~third~~ Scheduled Trading Day immediately ~~succeeding set of parentheses~~preceding the Maturity Date, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the close of business on the ~~second~~ Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions ~~for which the relevant Conversion Date occurs~~ occurring on or after ~~September~~ February 1, ~~2025~~2022, no later than ~~September~~ February 1, ~~2025~~2022). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar ~~Amount per $1,000 principal amount of Notes~~Amount. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount ~~per $1,000 principal amount of Notes~~ in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. By notice to Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 1, 2025, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through a Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 for all Conversion Dates occurring subsequent to delivery of such notice. Not later than three Business Days after providing notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee) of an irrevocable election with respect to the Settlement Method as described in the immediately preceding sentence, the Company shall issue a Current Report on Form 8-K or press release or otherwise provide public disclosure in a manner compliant with Regulation FD announcing that the Company has made such irrevocable election. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its option. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed by the Company as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted ~~cash in~~ an amount in cash equal to the sum of the Daily Conversion Values for each of the 50 40 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 40 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of ~~delivering~~ any fractional ~~Common Share~~share, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of ~~delivering~~ fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~13.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~11.02(h~~13.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common ~~Shares~~ 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 ~~11.02(h~~13.02(h). The Trustee (~~and~~ and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 13 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the ~~Company~~ Paying Agent in respect of such Notes and ~~has~~ not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~12.03~~14.02. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered~~, subject, in the case of Global Notes, to the rules of the applicable Depositary~~. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as ~~set forth~~ provided in Section ~~11.03(b~~13.03(b) and in Section ~~11.07(a)~~13.07, the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the ~~second~~ third Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the ~~second~~ third Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver ~~(if applicable) to the Conversion Agent or~~ to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be ~~entitled, in certificate form or in book-entry format,~~ entitled in satisfaction of the portion of the Company’s Conversion ~~Obligation~~Obligation that consists of shares of Common Stock, and, on or prior to such issuance, the Company shall give the Conversion Agent notice of the number of shares of Common Stock being so issued and the method by which the issuance shall take place. Any required funds due to a converting Holder in connection with a Cash Settlement or Combination Settlement shall be delivered to the Paying Agent and such Holder, or such Holder’s nominee or nominees, in accordance with the procedures set forth in Section 14.03. (d) In case any Note shall be surrendered for partial conversion, the Company (1) in the case of a Global Note, shall cause the principal balance of a Global Note to be adjusted in accordance with the procedures of the Depositary in effect at that time or (2) in the case of a Physical Note, 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 or similar issue or transfer tax due on the issue of any shares of Common ~~Shares~~ Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common ~~Shares~~ Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section ~~11.04~~13.04, no adjustment shall be made for dividends on any ~~Common Shares~~ shares issued upon the conversion of any Note as provided in this Article 1114. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon conversion, a Holder shall not receive any ~~separate~~ cash payment for accrued and unpaid interest, if any, except as set forth below~~, and the Company shall not adjust the Conversion Rate to adjust 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 ~~excluding~~not including, the ~~relevant~~ Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~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 ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts exist at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the certificate for any shares of Common ~~Shares shall be issuable~~ Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Combination Settlement), as the case may be, in each case solely for the purpose of receiving or participating in any dividend, distribution, issuance, share split or combination, tender or exchange offer or any other event that would lead to a Conversion Rate adjustment as described in Section 13.04. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of ~~delivering~~ any fractional share of Common ~~Shares~~ Stock issuable upon conversion based on the Daily VWAP ~~for~~ on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP ~~for~~ on the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of ~~Common Shares~~ shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the ~~relevant~~ applicable Observation Period and any fractional ~~Common Shares~~ shares remaining after such computation shall be paid in cash. (k) Notwithstanding anything to the contrary herein, no Holder shall be entitled to receive shares of Common Stock upon conversion to the extent (but only to the extent) that such receipt would cause such converting Holder to become, directly or indirectly, a “beneficial owner” (within the meaning of Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) of more than 5.0% of the shares of Common Stock outstanding at such time (the “Limitation”). Any purported delivery of shares of Common Stock upon conversion of Notes shall be void and have no effect to the extent (but only to the extent) that such delivery would result in the converting Holder becoming the beneficial owner of more than the Limitation. If any delivery of shares of Common Stock owed to a Holder upon conversion of Notes is not made, in whole or in part, as a result of the Limitation, the Company’s obligation to make such delivery shall not be extinguished and the Company shall deliver such shares as promptly as practicable after any such converting Holder gives notice to the Company that such delivery would not result in it being the beneficial owner of more than 5.0% of the shares of Common Stock outstanding at such time. The Limitation shall no longer apply following the effective date of any Fundamental Change.

Appears in 1 contract

Samples: Indenture (TPG Specialty Lending, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this ~~Section 11.02~~‎Section 14.02, ~~Section 11.03(b~~‎Section 14.03(b) and ~~Section 11.07(a~~‎Section 14.07(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j‎(j) of this ~~Section 11.02~~ ‎Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j‎(j) of this ~~Section 11.02~~ ‎Section 14.02 (“Combination Settlement”), at its election, as set forth in this ~~Section 11.02~~‎Section 14.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~September 1~~March 15, 2025 shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs on or after ~~September 1~~March 15, 2025, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion Date (or the period described in the third immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the close of business on the ~~second~~ Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs on or after ~~September 1~~March 15, 2025, no later than ~~September 1~~March 15, 2025). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to the relevant Conversion Date and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. By notice to Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 1, 2025, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through a Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 for all Conversion Dates occurring subsequent to delivery of such notice. Not later than three Business Days after providing notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee) of an irrevocable election with respect to the Settlement Method as described in the immediately preceding sentence, the Company shall issue a Current Report on Form 8-K or press release or otherwise provide public disclosure in a manner compliant with Regulation FD announcing that the Company has made such irrevocable election. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its option. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common ~~Share~~Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such ~~determination~~determination or related calculations. (b) Subject to ~~Section 11.02(e~~‎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 11.02(h~~‎Section 14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile 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 shares of Common ~~Shares~~ 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 11.02(h~~‎Section 14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this ~~Article 11~~ ‎Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with ~~Section 12.03~~‎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~~, subject, in the case of Global Notes, to the rules of the applicable Depositary~~. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b‎(b) above. Except as set forth in ~~Section 11.03(b~~‎‎Section 14.03(b) and ~~Section 11.07(a~~‎Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on no later than the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on no later than the second Business Day immediately following the last Trading Day of the Observation Period, in the case of ~~any other~~ Cash Settlement ~~Method~~or Combination Settlement. If any shares of Common ~~Shares~~ Stock are due to a converting ~~Holders~~Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to the ~~Conversion Agent or to such~~ converting Holder, or such Holder’s nominee or nominees, the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be entitled, in ~~certificate form or in~~ book-entry ~~format~~format through the Depositary, in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company (1) in the case of a Global Note, shall cause the principal balance of a Global Note to be adjusted in accordance with the procedures of the Depositary in effect at that time or (2) in the case of a Physical Note, shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the ~~issue~~ issuance of any shares of Common ~~Shares~~ Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common ~~Shares~~ Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in ~~Section 11.04~~‎Section 14.04, no adjustment shall be made for dividends on any shares of Common ~~Shares~~ Stock issued upon the conversion of any Note as provided in this Article 1114. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below~~, and the Company shall not adjust the Conversion Rate to adjust 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 ~~excluding~~not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~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 ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so ~~converted~~converted on the corresponding Interest Payment Date (regardless of whether the converting Holder was the shareholder 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 Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts ~~exist~~ exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date and any Fundamental Change Repurchase Date described in (2) of this ‎Section 14.02(h) shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the shares of Common ~~Shares~~ Stock 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 (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common ~~Shares~~ Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of ~~Common Shares~~ shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional ~~Common Shares~~ shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Samples: Indenture (Marcus Corp)

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