Appears in 2 contracts

Samples: Indenture (Canopy Growth Corp), Indenture (Canopy Growth Corp)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying or 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 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 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02. (i) All conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Notice of Redemption with respect to the Notes and prior to the related Redemption Date, and all conversions for which the relevant Conversion Date occurs on or after ~~January~~ June 15, 2023, 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 Notice of Redemption with respect to the Notes but prior to the related Redemption Date, and any conversions for which the relevant Conversion Date occurs on or after ~~January~~ June 15, 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 any conversions for which the relevant Conversion Date occurs ~~during~~ after the Company’s issuance of a Notice of Redemption ~~Period~~with respect to the Notes and prior to the related Redemption Date, or for which the relevant Conversion Date occurs on or after ~~January~~ June 15, 2023), 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 ~~U.S.~~ Trustee, shall deliver such Settlement Notice ~~in writing~~ to converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs (x) ~~during~~ after the date of issuance of a Notice of Redemption ~~Period~~with respect to the Notes and prior to the related Redemption Date, in such Notice of ~~Redemption,~~ Redemption or (y) on or after ~~January~~ June 15, 2023, no later than ~~January~~ June 15, 2023). If the Company does not elect a Settlement Method ~~with respect to a Conversion Date~~ prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or ~~Combination~~ Physical Settlement with respect to any conversion on such Conversion ~~Date~~Date or during such period, and the Company shall be deemed to have elected ~~Physical~~ 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~~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~~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 all Holders, the Company may, prior to June 15, 2023, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 for all Conversion Dates occurring subsequent to delivery of such notice. (iv) The cash, shares of Common ~~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 ~~(or is deemed to have elected)~~ to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of 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 20 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, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 20 30 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 ~~Shares~~Stock, the Company shall notify the ~~U.S.~~ Trustee and the Conversion Agent (if other than the ~~U.S.~~ 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 ~~U.S.~~ Trustee and the Conversion Agent (if other than the ~~U.S.~~ Trustee) shall have no responsibility for any such determination. (b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a ~~Definitive~~ Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common ~~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 14.02(h). The ~~U.S.~~ Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~15.03(a)~~15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (ib) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical ~~Settlement~~Settlement (provided that, with respect to any Conversion Date following the Regular Record Date immediately preceding the Maturity Date where Physical Settlement applies to the related conversion, the Company shall settle any such conversion on the Maturity Date), or 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 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 book-entry format through the Depositary~~, in the case of Global Notes, or in certificated form, in the case of Definitive Notes, in each case~~, in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the ~~U.S.~~ Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount 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 ~~U.S.~~ Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different 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 ~~issuance~~ 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 ~~U.S.~~ Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common ~~Shares~~ Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the ~~U.S.~~ Trustee, or the Custodian at the direction of the ~~U.S.~~ Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the ~~U.S.~~ Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the ~~U.S.~~ Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes 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 the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date 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 ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (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 shares remaining after such computation shall be paid in cash.

Appears in 2 contracts

Samples: Indenture (Splunk Inc), Indenture (Docusign Inc)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the Company shall ~~satisfy its Conversion Obligation by paying~~ pay or ~~delivering~~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 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 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~the Company’s issuance of a Notice of Redemption with respect to the Notes and prior to the related Redemption Date~~May 15, 2026, and all conversions for which the relevant Conversion Date occurs on or after ~~January 15, 2023~~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 ~~the Company’s issuance of a Notice of Redemption with respect to the Notes but prior to the related Redemption Date~~May 15, 2026, and any conversions for which the relevant Conversion Date occurs on or after ~~January 15, 2023~~the Company’s issuance of a Redemption Notice with respect to the Notes but prior to the related Redemption 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 ~~any conversions for which~~ one of the ~~relevant Conversion Date occurs during a Redemption Period~~periods described in the third immediately succeeding set of parentheses, ~~or for which~~ as the ~~relevant Conversion Date occurs on or after January 15, 2023~~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 ~~U.S.~~ Trustee, shall deliver such Settlement Notice ~~in writing~~ to converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs (x) ~~during~~ after the date of issuance of a Redemption ~~Period~~Notice with respect to the Notes and prior to the related Redemption Date, in such Redemption Notice ~~of Redemption,~~ or (y) on or after ~~January~~ May 15, ~~2023~~2026, no later than ~~January~~ May 15, ~~2023~~2026). If the Company does not elect a Settlement Method ~~with respect to a Conversion Date~~ prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or ~~Combination~~ Physical Settlement ~~with respect to such Conversion Date,~~ and the Company shall be deemed to have elected ~~Physical~~ 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~~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~~Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. (iv) The cash, shares of Common ~~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 ~~(or is deemed to have elected)~~ to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of 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 20 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 20 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 ~~Shares~~Stock, the Company shall notify the ~~U.S.~~ Trustee and the Conversion Agent (if other than the ~~U.S.~~ 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 ~~U.S.~~ Trustee and the Conversion Agent (if other than the ~~U.S.~~ Trustee) shall have no responsibility for any such determination. (b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the ~~applicable~~ procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a ~~Definitive~~ Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a ~~facsimile, PDF or other electronic transmission~~ facsimile thereof) (~~a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion,~~ a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common ~~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 14.02(h). The ~~U.S.~~ Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered ~~for conversion~~ by a Holder thereof if such ~~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 ~~15.03(a)~~15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (ib) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to a converting Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to ~~the Conversion Agent or to~~ such Holder, or such Holder’s nominee or nominees, the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be entitled, in book-entry format through the Depositary~~, in the case of Global Notes, or in certificated form, in the case of Definitive Notes, in each case~~, in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the ~~U.S.~~ Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount 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 ~~U.S.~~ Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different 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 ~~issuance~~ 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 ~~U.S.~~ Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common ~~Shares~~ Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the ~~U.S.~~ Trustee, or the Custodian at the direction of the ~~U.S.~~ Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the ~~U.S.~~ Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the ~~U.S.~~ Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes 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~~ Date, however, must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date 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~~ become a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (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 shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Samples: Indenture (Workiva Inc)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying or 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 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 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~the Company’s issuance of a Notice of Redemption with respect to the Notes and prior to the related Redemption Date~~August 15, 2029, and all conversions of Notes for which the relevant Conversion Date occurs ~~on or after January 15, 2023~~during the related Redemption Period, shall be settled using the same Settlement Method. (ii) Except for any conversions of Notes for which the relevant Conversion Date occurs ~~after the Company’s issuance of a Notice of Redemption with respect to the Notes but prior to~~ during the related Redemption ~~Date~~Period, and any conversions for which the relevant Conversion Date occurs on or after ~~January~~ August 15, ~~2023~~2029, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion Date (or in the case of any conversions for which the relevant Conversion Date occurs (i) during a Redemption Period, in the related Notice of Redemption or ~~for which the relevant Conversion Date occurs~~ (ii) on or after ~~January~~ August 15, ~~2023~~2029, no later than August 15, 2029), 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 U.S. 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 Trading Day immediately following the relevant Conversion Date (~~or,~~ or in the case of any conversions for which the relevant Conversion Date occurs (xi) during a Redemption Period, in ~~such~~ the related Notice of ~~Redemption,~~ Redemption or (yii) on or after ~~January~~ August 15, ~~2023~~2029, no later than ~~January~~ August 15, ~~2023~~2029). If the Company does not elect a Settlement Method ~~with respect to a Conversion Date~~ prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Combination Settlement with respect to any conversion on such Conversion ~~Date~~Date or during such period, and the Company shall be deemed to have elected Physical ~~Settlement in respect of its Conversion Obligation~~Settlement. 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~~Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement (or is deemed to have elected Combination Settlement) in respect of its Conversion Obligation but does not indicate a Specified Dollar ~~Amount~~Amount per $1,000 principal amount of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. For the avoidance of doubt, the Company’s failure to timely elect a Settlement Method or specify as applicable a Specified Dollar Amount shall not constitute a Default or Event of Default under the Indenture. (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 (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of 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 20 40 consecutive Trading Days during the related Observation Period; and (C) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 20 40 consecutive Trading Days during the 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 (if applicable), the Daily Conversion ~~Values, as the case may be,~~ Values (if applicable) and the amount of cash payable in lieu of delivering any fractional share of Common ~~Shares~~Stock, the Company shall notify the ~~U.S.~~ Trustee and the Conversion Agent (if other than the ~~U.S.~~ Trustee) ~~in writing~~ of the Daily Settlement Amounts or (if applicable), the Daily Conversion ~~Values, as the case may be,~~ Values (if applicable) and the amount of cash payable in lieu of delivering any fractional shares of Common ~~Shares~~Stock. The ~~U.S.~~ Trustee and the Conversion Agent (if other than the ~~U.S.~~ Trustee) shall have no responsibility for any such determination. (b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a ~~Definitive~~ Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable ~~procedure~~ procedures of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common ~~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 14.02(h). The ~~U.S.~~ Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such ~~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 ~~15.03(a)~~15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (ib) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the second Business Day immediately following the last Trading Day of the relevant Observation Period, in the case of any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to a converting Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be entitled, in book-entry format through the Depositary~~, in the case of Global Notes, or in certificated form, in the case of Definitive Notes, in each case~~, in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the ~~U.S.~~ Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount 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 ~~U.S.~~ Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different 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 ~~issuance~~ 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 ~~U.S.~~ Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common ~~Shares~~ Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the ~~U.S.~~ Trustee, or the Custodian at the direction of the ~~U.S.~~ Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the ~~U.S.~~ Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the ~~U.S.~~ Trustee. (h) Upon conversion, unless a Holder converts after the close of business on a Record Date for an interest payment but on or prior to the corresponding Interest Payment Date, a Holder shall ~~not~~ receive ~~any separate~~ a cash payment ~~for~~ representing accrued and unpaid ~~interest, if any, except as set forth below~~interest to but excluding the Conversion Date. 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,~~ Note. if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and 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 and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date 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~~ Stock shall be issuable upon conversion shall be treated as a stockholder of record of such shares of Common Stock as of the close of business on the relevant Conversion Date (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (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, if any, that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash. (k) 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 the Company notice 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. The Trustee shall have no obligation to monitor any Holder or beneficial owner’s compliance with the Limitation.

Appears in 1 contract

Samples: Sixth Supplemental Indenture (Capital Southwest Corp)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the Company shall ~~satisfy its Conversion Obligation by paying~~ pay or ~~delivering~~deliver, as the case may be, to the converting Holder, in respect of each $US$1,000 principal amount of Notes being converted, cash (“Cash Settlement”), ~~Common Shares~~ADSs, together with cash, if applicable, in lieu of delivering any fractional ~~share of Common Shares~~ ADSs in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”) or a combination of cash and ~~Common Shares~~ADSs, together with cash, if applicable, in lieu of delivering any fractional ~~share of Common Shares~~ ADS in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02. (i) All conversions of Called Notes for which the relevant Conversion Date occurs ~~after the Company’s issuance of a Notice of Redemption with respect to the Notes and prior to~~ during the related Redemption ~~Date~~Period, and all conversions for which the relevant Conversion Date occurs on or after ~~January~~ September 15, ~~2023,~~ 2027 shall be settled using the same Settlement Method. (ii) Except for any conversions of Called Notes for which the relevant Conversion Date occurs ~~after~~ during the ~~Company’s issuance of a Notice of~~ relevant Redemption ~~with respect to the Notes but prior to the related Redemption Date~~Period, and any conversions for which the relevant Conversion Date occurs on or after ~~January~~ September 15, ~~2023~~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 ~~any conversions for which~~ the ~~relevant Conversion Date occurs during a Redemption Period, or for which~~ period described in the ~~relevant Conversion Date occurs on or after January 15, 2023), the Company elects to deliver a notice (the “Settlement Notice”)~~ third immediately succeeding set of ~~the relevant Settlement Method in respect of such Conversion Date (or such period~~parentheses, as the case may be), the Company, through the U.S. Trustee, shall deliver such Settlement Notice in writing to converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs (x) during a Redemption Period, in such Notice of Redemption, or (y) on or after January 15, 2023, no later than January 15, 2023). If the Company does not elect a Settlement Method with respect to a Conversion Date prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Combination Settlement with respect to such Conversion Date, and the Company shall be deemed to have elected Physical Settlement in respect of its Conversion Obligation. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount, the Specified Dollar Amount shall be deemed to be $1,000. (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 (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of 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 20 consecutive Trading Days during the related Observation Period; and (C) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 20 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 Shares, the Company shall notify the U.S. Trustee and the Conversion Agent (if other than the U.S. 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 Common Shares. The U.S. Trustee and the Conversion Agent (if other than the U.S. Trustee) shall have no responsibility for any such determination. (b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a Definitive Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any 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 14.02(h). The U.S. Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03(a). If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (i) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any Common Shares are due to a converting Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of Common Shares to which such Holder shall be entitled, in book-entry format through the Depositary, in the case of Global Notes, or in certificated form, in the case of Definitive Notes, in each case, in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the U.S. Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount 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 U.S. Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different 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 issuance 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 U.S. Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any Common Shares issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the U.S. Trustee, or the Custodian at the direction of the U.S. Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the U.S. Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the U.S. Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes 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 the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date 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 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 (or is deemed to have elected) to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common Shares upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of 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 shares remaining after such computation shall be paid in cash.a

Appears in 1 contract

Samples: Indenture (iQIYI, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the Company shall ~~satisfy its Conversion Obligation by paying~~ pay or ~~delivering~~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 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 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02. ~~(i)~~ i. All conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Notice of Redemption with respect to the Notes and prior to the related Redemption Date, and all conversions for which the relevant Conversion Date occurs on or after ~~January~~ June 15, ~~2023,~~ 2027 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 Notice of Redemption with respect to the Notes but prior to the related Redemption Date, and any conversions for which the relevant Conversion Date occurs on or after ~~January~~ June 15, ~~2023~~2027, 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 any conversions for which the relevant Conversion Date occurs (x) during a Redemption Period, in such Notice of Redemption or ~~for which the relevant Conversion Date occurs~~ (y) on or after ~~January~~ June 15, ~~2023~~2027), 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~~ with a copy to the ~~U.S.~~ Trustee and the Conversion Agent (if other than the Trustee), shall deliver such Settlement Notice ~~in writing~~ to converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs (x) during a Redemption Period, in such Notice of ~~Redemption,~~ Redemption or (y) on or after ~~January~~ June 15, ~~2023~~2027, no later than ~~January~~ the close of business on Scheduled Trading Day immediately preceding June 15, ~~2023~~2027). If the Company does not elect a Settlement Method ~~with respect to a Conversion Date~~ prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or ~~Combination~~ Physical Settlement with respect to such ~~Conversion Date,~~ conversion or during such period and the Company shall be deemed to have elected ~~Physical~~ 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~~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~~Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. (iv) . The cash, shares of Common ~~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 ~~(or is deemed to have elected)~~ to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of 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 20 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 20 50 consecutive Trading Days during the related Observation Period. ~~(v)~~ 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 ~~Shares~~Stock, the Company shall notify the ~~U.S.~~ Trustee and the Conversion Agent (if other than the ~~U.S.~~ 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 ~~U.S.~~ Trustee and the Conversion Agent (if other than the ~~U.S.~~ Trustee) shall have no responsibility for any such determination. (b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth ~~above~~herein, such Holder shall (i) in the case of a Global Note, comply with the ~~applicable~~ procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a ~~Definitive~~ Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a ~~facsimile, PDF~~ facsimile or ~~other~~ electronic transmission thereof) (~~a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion,~~ a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any 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 14.02(h). The ~~U.S.~~ Trustee (~~and~~ and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered ~~for conversion~~ by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~15.03(a)~~15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (ib) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical ~~Settlement~~Settlement (provided that, with respect to any Conversion Date following the Regular Record Date immediately preceding the Maturity Date where Physical Settlement applies to the related conversion, the Company shall settle any such conversion on the Maturity Date), or 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 ~~Holder~~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 book-entry format through the Depositary, in the case of Global Notes, or in certificated form, in the case of Definitive Notes, in each case,~~ entitled in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the ~~U.S.~~ Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount 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 ~~U.S.~~ Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different 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 ~~issuance~~ 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 ~~U.S.~~ Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common ~~Shares~~ Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the ~~U.S.~~ Trustee, or the Custodian at the direction of the ~~U.S.~~ Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the ~~U.S.~~ Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the ~~U.S.~~ Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than ~~cancelled~~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 the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date or any Fundamental Change Repurchase Date as described in the immediately preceding sentence shall receive the full interest payment due on the Maturity Date ~~in cash~~ 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 ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (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 shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Samples: Indenture (PROS Holdings, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the Company shall ~~satisfy its Conversion Obligation by paying~~ pay or ~~delivering~~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 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 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~the Company’s issuance of a Notice of Redemption with respect to the Notes and prior to the related Redemption Date~~March 15, 2025, and all conversions for which the relevant Conversion Date occurs on or after ~~January 15, 2023~~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 ~~the Company’s issuance of a Notice of Redemption with respect to the Notes but prior to the related Redemption Date~~March 15, 2025, and any conversions for which the relevant Conversion Date occurs on or after ~~January 15, 2023~~the Company’s issuance of a Redemption Notice with respect to the Notes but prior to the related Redemption 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 ~~any conversions for which~~ one of the ~~relevant Conversion Date occurs during a Redemption Period~~periods described in the third immediately succeeding set of parentheses, ~~or for which~~ as the ~~relevant Conversion Date occurs on or after January 15, 2023~~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 U.S. 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 Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs (x) ~~during~~ after the date of issuance of a Redemption ~~Period~~Notice with respect to the Notes and prior to the related Redemption Date, in such Redemption Notice ~~of Redemption,~~ or (y) on or after ~~January~~ March 15, ~~2023~~2025, no later than ~~January~~ the close of business on the Business Day immediately preceding March 15, ~~2023~~2025). If the Company does not elect a Settlement Method ~~with respect to a Conversion Date~~ prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or ~~Combination~~ Physical Settlement ~~with respect to such Conversion Date,~~ and the Company shall be deemed to have elected ~~Physical~~ 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~~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~~Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. (iv) The cash, shares of Common ~~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 ~~(or is deemed to have elected)~~ to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of 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 20 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 20 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 ~~Shares~~Stock, the Company shall notify the ~~U.S.~~ Trustee and the Conversion Agent (if other than the ~~U.S.~~ 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 ~~U.S.~~ Trustee and the Conversion Agent (if other than the ~~U.S.~~ Trustee) shall have no responsibility for any such determination. (b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the ~~applicable~~ procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a ~~Definitive~~ Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a ~~facsimile, PDF or other electronic transmission~~ facsimile thereof) (~~a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion,~~ a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common ~~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 14.02(h). The ~~U.S.~~ Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered ~~for conversion~~ by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~15.03(a)~~15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (ib) above. ~~Except~~ If the Company elects Physical Settlement with respect to any conversion of the Notes, the Company shall deliver the consideration due in respect of conversion on the second Business Day immediately following the relevant Conversion Date (provided that, with respect to any conversion following the Regular Record Date immediately preceding the Maturity Date where Physical Settlement is applicable, the Company shall settle any such conversion on the Maturity Date). If the Company elects (or is deemed to have elected) Cash Settlement or Combination Settlement with respect to any conversion of Notes, except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the ~~relevant Conversion Date, if the Company elects Physical Settlement, or on the second Business Day immediately following the~~ last Trading Day of the Observation Period~~, in the case of any other Settlement Method~~. If any shares of Common ~~Shares~~ Stock are due to a converting Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be entitled, in book-entry format through the Depositary, in ~~the case of Global Notes, or in certificated form, in the case of Definitive Notes, in each case, in~~ satisfaction of the Company’s Conversion Obligation. (d) In case any Physical Note shall be surrendered for partial conversion, the Company shall execute and the ~~U.S.~~ Trustee shall authenticate and deliver to or upon the written order of the Holder of the Physical Note so surrendered a new Physical Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Physical Note, without payment of any service charge by the converting Holder but, if required by the Company or ~~U.S.~~ Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental 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 ~~issuance~~ 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 ~~U.S.~~ Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common ~~Shares~~ Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the ~~U.S.~~ Trustee, or the Custodian at the direction of the ~~U.S.~~ Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the ~~U.S.~~ Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the ~~U.S.~~ Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes 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~~ Date, however, must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date 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 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 (or is deemed to have elected) to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common Shares upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of 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 shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Samples: Indenture (Silicon Laboratories Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the Company shall ~~satisfy its Conversion Obligation by paying~~ pay or ~~delivering~~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~~ Ordinary Shares (including, for the avoidance of doubt, any newly issued Ordinary Shares), together with cash, if applicable, in lieu of delivering any fractional ~~share of Common~~ Ordinary Shares in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”) or a combination of cash and ~~Common~~ Ordinary Shares, together with cash, if applicable, in lieu of delivering any fractional ~~share of Common~~ Ordinary Shares in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02. (i) All conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice ~~of Redemption~~ with respect to the Notes and prior to the related Redemption Date, and all conversions for which the relevant Conversion Date occurs on or after ~~January 15~~June 1, ~~2023~~2026, 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 ~~of Redemption~~ with respect to the Notes but prior to the related Redemption Date, and any conversions for which the relevant Conversion Date occurs on or after ~~January 15~~June 1, ~~2023~~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 ~~any conversions for which~~ one of the ~~relevant Conversion Date occurs during a Redemption Period~~periods described in the third immediately succeeding set of parentheses, ~~or for which~~ as the ~~relevant Conversion Date occurs on or after January 15, 2023~~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 U.S. Trustee,~~ Company shall deliver such Settlement Notice ~~in writing~~ to converting ~~Holders~~ Holders, the Trustee and the Conversion Agent no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs (x) ~~during~~ after the date of issuance of a Redemption ~~Period~~Notice with respect to the Notes and prior to the related Redemption Date, in such Redemption Notice ~~of Redemption,~~ or (y) on or after ~~January 15~~June 1, ~~2023~~2026, no later than ~~January 15~~June 1, ~~2023~~2026). If the Company does not elect a Settlement Method ~~with respect to a Conversion Date~~ prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or ~~Combination~~ Physical Settlement ~~with respect to such Conversion Date,~~ and the Company shall be deemed to have elected ~~Physical~~ 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~~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~~Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. (iv) The cash, ~~Common~~ Ordinary Shares or combination of cash and ~~Common~~ Ordinary Shares in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects ~~(or is deemed to have elected)~~ to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of ~~Common~~ Ordinary 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 20 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, ~~to the converting Holder~~ in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 20 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 Shares~~Ordinary Share, the Company shall notify the ~~U.S.~~ Trustee and the Conversion Agent (if other than the ~~U.S.~~ 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 ~~Common~~ Ordinary Shares. The ~~U.S.~~ Trustee and the Conversion Agent (if other than the ~~U.S.~~ Trustee) shall have no responsibility for any such determination. (vi) By notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to June 1, 2026, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through any Settlement Method that the Company is then permitted to elect for all Conversion Dates occurring subsequent to delivery of such notice. Concurrently with providing notice to all Holders, the Trustee and the Conversion Agent (if other than the Trustee) of an election to irrevocably fix the Settlement Method, the Company shall promptly issue a report on Form 6-K or press release announcing that the Company has elected to irrevocably fix the Settlement Method (and describing such Settlement Method). Notwithstanding the foregoing, no such irrevocable election shall affect any Settlement Method theretofore elected (or deemed to be elected) with respect to any Note pursuant to this Section 14.02. For the avoidance of doubt, such an irrevocable election, if made, shall be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(g). However, the Company may nonetheless choose to execute such an amendment at its option. (b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the ~~applicable~~ procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a ~~Definitive~~ Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (~~a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion,~~ a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ~~Common~~ Ordinary Shares to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The ~~U.S.~~ Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered ~~for conversion~~ by a Holder thereof if such ~~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 ~~15.03(a)~~15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (ib) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any ~~Common~~ Ordinary Shares are due to a converting Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to the ~~Conversion Agent or to such~~ converting Holder, or such Holder’s nominee or nominees, the full number of ~~Common~~ Ordinary Shares to which such Holder shall be entitled, in book-entry format through the Depositary~~, in the case of Global Notes, or in certificated form, in the case of Definitive Notes, in each case~~, in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the ~~U.S.~~ Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount 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 ~~U.S.~~ Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different 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 ~~issuance~~ issue of any ~~Common~~ Ordinary Shares upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the ~~Common~~ Ordinary Shares being issued in a name other than the Holder’s name until the ~~U.S.~~ Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any ~~Common~~ Ordinary Shares issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the ~~U.S.~~ Trustee, or the Custodian at the direction of the ~~U.S.~~ Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the ~~U.S.~~ Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the ~~U.S.~~ Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and ~~Common~~ Ordinary 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 the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date 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 ~~Common~~ Ordinary Shares shall be issuable upon conversion shall be treated as a ~~stockholder~~ holder of record as of the close of business on the relevant Conversion Date (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional ~~share of Common Shares~~ Ordinary Share upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional ~~share of Common Shares~~ Ordinary Share issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation 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 shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Samples: Indenture (Arrival)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the Company shall ~~satisfy its Conversion Obligation by paying~~ pay or ~~delivering~~deliver, as the case may be, to the converting Holder, in respect of each $US$1,000 principal amount of Notes being converted, cash (“Cash Settlement”), ~~Common Shares~~ADSs, together with cash, if applicable, in lieu of delivering any fractional ~~share of Common Shares~~ ADSs in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”) or a combination of cash and ~~Common Shares~~ADSs, together with cash, if applicable, in lieu of delivering any fractional ~~share of Common Shares~~ ADS in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02. (i) All conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Tax Redemption Notice ~~of Redemption~~ with respect to the Notes and prior to the related Tax Redemption ~~Date~~Date shall be settled using the same Settlement Method, and all conversions for which the relevant Conversion Date occurs on or after ~~January~~ December 15, ~~2023,~~ 2024 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 Tax Redemption Notice ~~of Redemption~~ with respect to the Notes but prior to the related Tax Redemption Date, and any conversions for which the relevant Conversion Date occurs on or after ~~January~~ December 15, ~~2023~~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 ~~any conversions for which~~ one of the ~~relevant Conversion Date occurs during a Redemption Period~~periods described in the fourth immediately succeeding set of parentheses, ~~or for which~~ as the ~~relevant Conversion Date occurs on or after January 15, 2023~~case may be), the Company elects to a Settlement Method, the Company shall deliver a written notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be)) to converting Holders, the ~~Company, through~~ Trustee and the ~~U.S.~~ Conversion Agent (if other than the Trustee~~, shall deliver such Settlement Notice in writing to converting Holders~~ ) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs (x) ~~during~~ after the date of issuance of a Tax Redemption ~~Period~~Notice with respect to the Notes and prior to the related Tax Redemption Date, in such Tax Redemption Notice ~~of Redemption,~~ or (y) on or after ~~January~~ December 15, ~~2023~~2024, no later than ~~January~~ December 15, ~~2023~~2024). If the Company does not elect a Settlement Method ~~with respect to a Conversion Date~~ prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or ~~Combination~~ Physical Settlement ~~with respect to such Conversion Date,~~ and the Company shall be deemed to have elected ~~Physical~~ Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per US$1,000 principal amount of Notes shall be equal to US$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~~Amount per US$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~~Amount per US$1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per US$1,000 principal amount of Notes shall be deemed to be $US$1,000. (iv) The cash, ~~Common Shares~~ ADSs or a combination of cash and ~~Common Shares~~ ADSs in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects ~~(or is deemed to have elected)~~ to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $US$1,000 principal amount of Notes being converted a number of ~~Common Shares~~ ADSs equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $US$1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 20 40 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, ~~to the converting Holder~~ in respect of each $US$1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 20 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 Shares~~ADS, the Company shall notify the ~~U.S.~~ Trustee and the Conversion Agent (if other than the ~~U.S.~~ 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 ~~Common Shares~~ADSs. The ~~U.S.~~ Trustee and the Conversion Agent (if other than the ~~U.S.~~ Trustee) shall have no responsibility for any such determination. (b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the ~~applicable~~ procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a ~~Definitive~~ Physical Note (1) complete, manually sign and deliver an a duly completed irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a ~~facsimile, PDF or other electronic transmission~~ facsimile thereof) (~~a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion,~~ a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ~~Common Shares~~ ADSs to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The U.S. Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03(a). If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (i) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any Common Shares are due to a converting Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of Common Shares to which such Holder shall be entitled, in book-entry format through the Depositary, in the case of Global Notes, or in certificated form, in the case of Definitive Notes, in each case, in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the U.S. Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount 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 U.S. Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different 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 issuance 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 U.S. Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any Common Shares issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the U.S. Trustee, or the Custodian at the direction of the U.S. Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the U.S. Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the U.S. Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes 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 the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date 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 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 (or is deemed to have elected) to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common Shares upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of 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 shares remaining after such computation shall be paid in cash.in

Appears in 1 contract

Samples: Indenture (JOYY Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~14.02~~11.02, Section ~~14.03(b~~11.03(b) and Section ~~14.07(a~~11.07(a), upon conversion of any Note, the Company shall ~~satisfy its Conversion Obligation by paying~~ pay or ~~delivering~~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 ~~14.02~~ 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 ~~14.02~~ 11.02 (“Combination Settlement”), at its election, as set forth in this Section ~~14.02~~11.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~the Company’s issuance of a Notice of Redemption with respect to the Notes and prior to the related Redemption Date~~June 1, 2024 and all conversions for which the relevant Conversion Date occurs ~~on or~~ after ~~January 15, 2023,~~ the issuance of a Notice of Redemption 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 Notice of Redemption with respect to the ~~Notes~~ Notes, but prior to the related Redemption Date, and any conversions for which the relevant Conversion Date occurs on or after ~~January 15~~June 1, ~~2023~~2024, 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 ~~any conversions for which~~ in respect of one of the ~~relevant Conversion Date occurs during a Redemption Period~~periods described in the fourth immediately succeeding set of parentheses, ~~or for which~~ as the ~~relevant Conversion Date occurs on or after January 15, 2023~~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 U.S. 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 Trading Day immediately following the ~~relevant~~ related Conversion Date (or, in the case of ~~any~~ conversions ~~for which the relevant Conversion Date occurs~~ occurring (x) ~~during~~ after the date of issuance of a Notice of Redemption ~~Period~~and prior to the related Redemption Date, in such Notice of ~~Redemption,~~ Redemption or (y) on or after ~~January 15~~June 1, ~~2023~~2024, no later than ~~January 15~~the close of business on the Scheduled Trading Day immediately preceding June 1, ~~2023~~2024). If the Company does not elect a Settlement Method ~~with respect to a Conversion Date~~ prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or ~~Combination~~ Physical Settlement ~~with respect to such Conversion Date,~~ and the Company shall be deemed to have elected ~~Physical~~ 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~~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~~Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. (iv) The cash, shares of Common ~~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 ~~(or is deemed to have elected)~~ to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of 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 20 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 20 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 ~~Shares~~Stock, the Company shall notify the ~~U.S.~~ Trustee and the Conversion Agent (if other than the ~~U.S.~~ 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 ~~U.S.~~ Trustee and the Conversion Agent (if other than the ~~U.S.~~ Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~14.02(e~~11.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the ~~applicable~~ procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~14.02(h~~11.02(h) and, if required, pay all transfer and similar taxes, if any as provided in Sections 11.02(d) or (e), and (ii) in the case of a ~~Definitive~~ Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a ~~facsimile, PDF or other electronic transmission~~ facsimile thereof) (~~a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion,~~ a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common ~~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 ~~14.02(h~~11.02(h). The ~~U.S.~~ Trustee (~~and~~ and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 XI 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 ~~15.03(a)~~12.02. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (ib) above. Except as set forth in Section ~~14.03(b~~11.03(b) and Section ~~14.07(a~~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~~Settlement (provided that, with respect to any Conversion Date occurring on or after June 1, 2024, settlement will occur 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 a converting ~~Holder~~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 book-entry format through the Depositary, in the case of Global Notes, or in certificated form, in the case of Definitive Notes, in each case,~~ entitled in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the ~~U.S.~~ Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount 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 U.S. 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 ~~issuance~~ 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 ~~U.S.~~ Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section ~~14.04~~11.04, no adjustment shall be made for dividends on any ~~Common Shares~~ shares issued upon the conversion of any Note as provided in this Article 14XI. (g) Upon the conversion of an interest in a Global Note, the ~~U.S.~~ Trustee, or the Notes Custodian at the direction of the ~~U.S.~~ Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the ~~U.S.~~ Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the ~~U.S.~~ Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes 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 the Notes so converted; provided that no such payment shall be required (1) for conversions of Notes following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, any Fundamental Change Repurchase Date or Redemption Date, in each case, shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in ~~cash~~ cash, regardless of whether their Notes have been converted 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 ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (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 shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Samples: First Supplemental Indenture (INFINERA Corp)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the Company shall ~~satisfy its Conversion Obligation by paying~~ pay or ~~delivering~~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~~shares of Class C Capital Stock, together with cash, if applicable, in lieu of delivering any fractional share of ~~Common Shares~~ Class C Capital Stock in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”) or a combination of cash and ~~Common Shares~~shares of Class C Capital Stock, together with cash, if applicable, in lieu of delivering any fractional share of ~~Common Shares~~ Class C Capital Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02. (i) All conversions for which the relevant Conversion Date occurs on or after September 1, 2021, and all conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice ~~of Redemption~~ with respect to the Notes and prior to the related Redemption Date~~, and all conversions for which the relevant Conversion Date occurs on or after January 15, 2023~~, 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 ~~of Redemption~~ with respect to the Notes but prior to the related Redemption Date, and any conversions for which the relevant Conversion Date occurs on or after ~~January 15~~September 1, ~~2023~~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 ~~any conversions for which~~ one of the ~~relevant Conversion Date occurs during a Redemption Period~~periods described in the third immediately succeeding set of parentheses, ~~or for which~~ as the ~~relevant Conversion Date occurs on or after January 15, 2023~~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 ~~U.S.~~ Trustee, shall deliver such Settlement Notice ~~in writing~~ to converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs (x) ~~during~~ after the date of issuance of a Redemption ~~Period~~Notice with respect to the Notes and prior to the related Redemption Date, in such Redemption Notice ~~of Redemption,~~ or (y) on or after ~~January 15~~September 1, ~~2023~~2021, no later than ~~January 15~~September 1, ~~2023~~2021). If the Company does not elect a Settlement Method ~~with respect to a Conversion Date~~ prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or ~~Combination~~ Physical Settlement ~~with respect to such Conversion Date,~~ and the Company shall be deemed to have elected ~~Physical~~ 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~~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~~Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. (iv) The cash, ~~Common Shares~~ shares of Class C Capital Stock or combination of cash and ~~Common Shares~~ shares of Class C Capital Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects ~~(or is deemed to have elected)~~ to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, 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~~ shares of Class C Capital 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 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, ~~to the converting Holder~~ in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 20 consecutive 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 Shares~~Class C Capital Stock, the Company shall notify the ~~U.S.~~ Trustee and the Conversion Agent (if other than the ~~U.S.~~ 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 ~~Common Shares~~shares of Class C Capital Stock. The ~~U.S.~~ Trustee and the Conversion Agent (if other than the ~~U.S.~~ Trustee) shall have no responsibility for any such determination. (b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the ~~applicable~~ procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a ~~Definitive~~ Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a ~~facsimile, PDF or other electronic transmission~~ facsimile thereof) (~~a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion,~~ a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ~~Common Shares~~ shares of Class C Capital Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The ~~U.S.~~ Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered ~~for conversion~~ by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~15.03(a)~~15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (ib) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the ~~second~~ third Business Day immediately following the relevant Conversion Date, if the Company elects Physical ~~Settlement~~Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Company shall deliver the consideration due in respect of the Conversion Obligation on the Maturity Date), or on the ~~second~~ third Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any ~~Common Shares~~ shares of Class C Capital Stock are due to a converting Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of ~~Common Shares~~ shares of Class C Capital Stock to which such Holder shall be entitled, in certificate form or in book-entry ~~format through the Depositary, in the case of Global Notes, or in certificated form, in the case of Definitive Notes, in each case~~format, in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the ~~U.S.~~ Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount 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 ~~U.S.~~ Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different 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 ~~issuance~~ issue of any ~~Common Shares~~ shares of Class C Capital 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 ~~Common Shares~~ shares of Class C Capital Stock being issued in a name other than the Holder’s name until the ~~U.S.~~ Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any ~~Common Shares~~ shares of Class C Capital Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the ~~U.S.~~ Trustee, or the Custodian at the direction of the ~~U.S.~~ Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the ~~U.S.~~ Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the ~~U.S.~~ Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and ~~Common Shares~~shares of Class C Capital 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 the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the ~~Business Day immediately following the~~ corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date 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 ~~Common Shares~~ shares of Class C Capital 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 ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of ~~Common Shares~~ Class C Capital Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of ~~Common Shares~~ Class C Capital 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 shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Samples: Indenture (Zillow Group, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~14.02~~14.01(b)(v), Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the Company shall ~~satisfy its Conversion Obligation by paying~~ pay or ~~delivering~~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~~shares of Class C Capital Stock, together with cash, if applicable, in lieu of delivering any fractional share of ~~Common Shares~~ Class C Capital Stock in accordance with subsection (j) of ~~this~~ this Section ~~14.02~~ 14.01 (b)(v) (“Physical Settlement”) or a combination of cash and ~~Common Shares~~shares of Class C Capital Stock, together with cash, if applicable, in lieu of delivering any fractional share of ~~Common Shares~~ Class C Capital Stock in accordance with subsection (j) of this Section ~~14.02~~ 14.01(b)(v) (“Combination Settlement”), at its election, as set forth in this Section ~~14.02~~14.01(b)(v). (i) All conversions for which the relevant Conversion Date occurs on or after [ ], 20[ ], and all conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice ~~of Redemption~~ with respect to the Notes and prior to the related Redemption Date~~, and all conversions for which the relevant Conversion Date occurs on or after January 15, 2023~~, 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 ~~of Redemption~~ with respect to the Notes but prior to the related Redemption Date, and any conversions for which the relevant Conversion Date occurs on or after ~~January 15~~[ ], ~~2023~~20[ ], 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 ~~any conversions for which~~ one of the ~~relevant Conversion Date occurs during a Redemption Period~~periods described in the third immediately succeeding set of parentheses, ~~or for which~~ as the ~~relevant Conversion Date occurs on or after January 15, 2023~~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 ~~U.S.~~ Trustee, shall deliver such Settlement Notice ~~in writing~~ to converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs (x) ~~during~~ after the date of issuance of a Redemption ~~Period~~Notice with respect to the Notes and prior to the related Redemption Date, in such Redemption Notice ~~of Redemption,~~ or (y) on or after ~~January 15~~[ ], ~~2023~~20[ ], no later than ~~January 15~~[ ], ~~2023~~20[ ]). If the Company does not elect a Settlement Method ~~with respect to a Conversion Date~~ prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or ~~Combination~~ Physical Settlement ~~with respect to such Conversion Date,~~ and the Company shall be deemed to have elected ~~Physical~~ 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~~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~~Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. (iv) The cash, ~~Common Shares~~ shares of Class C Capital Stock or combination of cash and ~~Common Shares~~ shares of Class C Capital Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects ~~(or is deemed to have elected)~~ to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, 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~~ shares of Class C Capital 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 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, ~~to the converting Holder~~ in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 20 [ ] consecutive 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 Shares~~Class C Capital Stock, the Company shall notify the ~~U.S.~~ Trustee and the Conversion Agent (if other than the ~~U.S.~~ 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 ~~Common Shares~~shares of Class C Capital Stock. The ~~U.S.~~ Trustee and the Conversion Agent (if other than the ~~U.S.~~ Trustee) shall have no responsibility for any such determination. (b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the ~~applicable~~ procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a ~~Definitive~~ Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a ~~facsimile, PDF or other electronic transmission~~ facsimile thereof) (~~a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion,~~ a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ~~Common Shares~~ shares of Class C Capital Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The ~~U.S.~~ Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered ~~for conversion~~ by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~15.03(a)~~15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (ib) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the ~~second~~ third Business Day immediately following the relevant Conversion Date, if the Company elects Physical ~~Settlement~~Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Company shall deliver the consideration due in respect of the Conversion Obligation on the Maturity Date), or on the ~~second~~ third Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any ~~Common Shares~~ shares of Class C Capital Stock are due to a converting Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of ~~Common Shares~~ shares of Class C Capital Stock to which such Holder shall be entitled, in certificate form or in book-entry ~~format through the Depositary, in the case of Global Notes, or in certificated form, in the case of Definitive Notes, in each case~~format, in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the ~~U.S.~~ Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount 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 ~~U.S.~~ Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different 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 ~~issuance~~ issue of any ~~Common Shares~~ shares of Class C Capital 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 ~~Common Shares~~ shares of Class C Capital Stock being issued in a name other than the Holder’s name until the ~~U.S.~~ Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any ~~Common Shares~~ shares of Class C Capital Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the ~~U.S.~~ Trustee, or the Custodian at the direction of the ~~U.S.~~ Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the ~~U.S.~~ Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the ~~U.S.~~ Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and ~~Common Shares~~shares of Class C Capital 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 the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the ~~Business Day immediately following the~~ corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date 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 ~~Common Shares~~ shares of Class C Capital 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 ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of ~~Common Shares~~ Class C Capital Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of ~~Common Shares~~ Class C Capital 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 shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Samples: Indenture (Zillow Group, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~14.02~~13.02, Section ~~14.03(b~~13.03(b) and Section ~~14.07(a~~13.07(a), upon conversion of any Note, the Company shall ~~satisfy its Conversion Obligation by paying~~ pay or ~~delivering~~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 14.02~~ (“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 14.02~~ (“Combination Settlement”), at its election, as set forth in this Section ~~14.02~~13.02. (i) All conversions for which the relevant Conversion Date occurs on or after the date of the Company’s issuance of a Redemption Notice ~~of Redemption~~ with respect to ~~the~~ any Notes and prior to the related Redemption Date, and all conversions for which the relevant Conversion Date occurs on or after ~~January 15~~March 1, ~~2023,~~ 2023 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 ~~of Redemption~~ with respect to the Notes but prior to the related Redemption ~~Date,~~ Date and any conversions for which the relevant Conversion Date occurs on or after ~~January 15~~March 1, 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 ~~any conversions for which~~ one of the ~~relevant Conversion Date occurs during a Redemption Period~~periods described in the third immediately succeeding set of parentheses, ~~or for which~~ as the ~~relevant Conversion Date occurs on or after January 15, 2023~~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 U.S. Trustee,~~ Company shall deliver such Settlement Notice ~~in writing~~ to converting Holders no later than the close of business on the VWAP 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 (~~x) during a Redemption Period, in such Notice of Redemption, or (y~~A) on or after ~~January 15~~the date of issuance of a Redemption Notice and prior to the related Redemption Date, in such Redemption Notice or (B) on or after March 1, 2023, no later than ~~January 15~~the close of business on the Business Day immediately preceding March 1, ~~2023~~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 ~~a Conversion Date~~ 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 Combination Settlement with respect to such Conversion Date, and~~ then the Company shall be deemed to have elected ~~Physical~~ the Default Settlement Method in respect of ~~its Conversion Obligation~~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. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar ~~Amount~~Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. For the avoidance of doubt, the Company’s failure to so select a Settlement Method or Specified Dollar Amount when so permitted shall not constitute a Default or Event of Default under this Indenture or the Notes. By notice to the Holders, the Company may change the Default Settlement Method to any permitted Settlement Method, except it may not change the Default Settlement Method during any Redemption Period (in respect of Notes converted with a Conversion Date occurring during such Redemption Period) or on or after March 1, 2023 (in respect of Notes converted with a Conversion Date that occurs on or after March 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 (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder~~ 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 20 40 consecutive VWAP Trading Days during the related Observation Period; and (C) if ~~the Company elects~~ Combination Settlement applies 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~~conversion, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 20 40 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 ~~Shares~~Stock, if any, the Company shall notify the ~~U.S.~~ Trustee and the Conversion Agent (if other than the ~~U.S.~~ 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 Common Shares~~same. The ~~U.S.~~ Trustee and the Conversion Agent (if other than the ~~U.S.~~ Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~14.02(e~~13.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the ~~applicable~~ procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date ~~to which such Holder is not entitled~~ as set forth in Section ~~14.02(h~~13.02(h) and (ii) in the case of a ~~Definitive~~ Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a ~~facsimile, PDF or other electronic transmission~~ facsimile thereof) (~~a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion,~~ a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common ~~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 ~~14.02(h~~13.02(h). The ~~U.S.~~ Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 13 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered ~~for conversion~~ by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~15.03(a)~~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. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (ib) above. Except as set forth in ~~Section 14.03(b~~‎Section 13.03(b) and Section ~~14.07(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 August 15, 2023. If any shares of Common ~~Shares~~ Stock are due to a converting 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 book-entry format through the Depositary~~, in the case of Global Notes, or in certificated form, in the case of Definitive Notes, in each case~~, in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the ~~U.S.~~ Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount 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 ~~U.S.~~ Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different 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 ~~issuance~~ 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 ~~U.S.~~ Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section ~~14.04~~13.04, no adjustment shall be made for dividends on any shares of Common ~~Shares~~ Stock issued upon the conversion of any Note as provided in this Article 1413. (g) Upon the conversion of an interest in a Global Note, the ~~U.S.~~ Trustee, or the Custodian at the direction of the ~~U.S.~~ Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the ~~U.S.~~ Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the ~~U.S.~~ Trustee. (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 will not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common ~~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 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~~ 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 ~~Fundamental Change Repurchase~~ 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 (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record as of the close of business on the Regular Record Date immediately preceding the Maturity Date, 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 (or is deemed~~ Physical Settlement applies to ~~have elected) 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~~ Combination Settlement applies 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 shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Samples: Indenture (Cree Inc)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the Company shall ~~satisfy its Conversion Obligation by paying~~ pay or ~~delivering~~deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Class A Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Class A Common ~~Shares~~ Stock in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Class A Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Class A Common ~~Shares~~ Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02. (i) All conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Notice of Redemption with respect to the Notes and prior to the related Redemption Date, and all conversions for which the relevant Conversion Date occurs on or after ~~January 15~~September 1, ~~2023~~2029, shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Notice of Redemption with respect to the Notes but prior to the related Redemption Date, and any conversions for which the relevant Conversion Date occurs on or after ~~January 15~~September 1, ~~2023~~2029, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion Date (or ~~any conversions for which~~ the ~~relevant Conversion Date occurs during a Redemption Period~~period described in the third immediately succeeding set of parentheses, ~~or for which~~ as the ~~relevant Conversion Date occurs on or after January 15, 2023~~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 ~~U.S.~~ Trustee, shall deliver such Settlement Notice ~~in writing~~ to converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs (x) ~~during~~ after the date of issuance of a Notice of Redemption ~~Period~~with respect to the Notes and prior to the related Redemption Date, in such Notice of ~~Redemption,~~ Redemption or (y) on or after ~~January 15~~September 1, ~~2023~~2029, no later than ~~January 15~~September 1, ~~2023~~2029). If the Company does not elect a Settlement Method ~~with respect to a Conversion Date prior to~~ by the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect ~~Cash~~ a Settlement ~~or Combination Settlement with respect to such Conversion Date,~~ Method and the Company shall be deemed to have elected ~~Physical~~ the Default Settlement in Method with respect ~~of its Conversion Obligation~~to such conversion. ~~Such~~ Any 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~~Amount per $1,000 principal amount of Notes. If the Company ~~delivers a Settlement Notice electing~~ timely elects Combination Settlement in with respect ~~of its Conversion Obligation~~ to a conversion but does not ~~indicate a~~ timely notify the converting Holder of the applicable Specified Dollar Amount, then the Specified Dollar Amount ~~shall~~ for such conversion will be deemed to be $~~1,000~~1,000 per $1,000 principal amount of Notes. The Company may, by notice to the Holders prior to September 1, 2029, irrevocably fix the Settlement Method, to any Settlement Method that the Company is then permitted to elect, that will apply to all conversions of Notes with a Conversion Date that is on or after the date the Company sends such notice. Concurrently with providing notice to all Holders of a change in the Default Settlement Method or an election to irrevocably fix the Settlement Method, the Company shall promptly issue a report on Form 8-K or press release announcing that the Company has made such change to the Default Settlement Method or elected to irrevocably fix the Settlement Method, as the case may be. Notwithstanding the foregoing, no such change in the Default Settlement Method or irrevocable election shall affect any Settlement Method theretofore elected (or deemed to be elected) with respect to any Note pursuant to this Section 14.02. For the avoidance of doubt, such an irrevocable election, if made, shall be effective without the need to amend this Indenture or the Notes, including pursuant to the provisions described in Section 10.01(g). However, the Company may nonetheless choose to execute such an amendment at the Company’s option. (iv) The cash, shares of Class A Common ~~Shares~~ Stock or combination of cash and shares of Class A Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects ~~(or is deemed to have elected)~~ to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, 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 Class A 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 20 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 20 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 related Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Class A Common ~~Shares~~Stock, the Company shall notify the ~~U.S.~~ Trustee and the Conversion Agent (if other than the ~~U.S.~~ 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 Class A Common ~~Shares~~Stock. The ~~U.S.~~ Trustee and the Conversion Agent (if other than the ~~U.S.~~ Trustee) shall have no responsibility for any such determination. (b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the ~~applicable~~ procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a ~~Definitive~~ Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a ~~facsimile, PDF or other electronic transmission~~ facsimile thereof) (~~a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion,~~ a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Class A 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 14.02(h). The ~~U.S.~~ Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be ~~surrendered for conversion~~ delivered by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~15.03(a)~~15.03. If a Holder submits its Notes for required repurchase, the Holder’s right to withdraw the Fundamental Change Repurchase Notice and convert the Notes that are subject to repurchase will terminate at the close of business on the Business Day immediately preceding the relevant Fundamental Change Repurchase Date. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (ib) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the second Business Day immediately following the last Trading Day of the relevant Observation Period, in the case of any other Settlement Method. If any shares of Class A Common ~~Shares~~ Stock are due to a converting Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of shares of Class A Common ~~Shares~~ Stock to which such Holder shall be entitled, in certificate form or in book-entry ~~format through the Depositary, in the case of Global Notes, or in certificated form, in the case of Definitive Notes, in each case~~format, in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the ~~U.S.~~ Trustee shall authenticate and deliver to ~~or upon the written order of~~ the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount 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 ~~U.S.~~ 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 ~~issuance~~ issue of any shares of Class A 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 Class A Common ~~Shares~~ Stock being issued in a name other than the Holder’s name until the ~~U.S.~~ Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Class A Common ~~Shares~~ Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the ~~U.S.~~ Trustee, or the Custodian at the direction of the ~~U.S.~~ Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the ~~U.S.~~ Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the ~~U.S.~~ Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Class A 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 the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date 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 Class A 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 ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Class A Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Class A 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,~~ 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 shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Samples: Indenture (Evolent Health, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~14.02~~10.02, Section ~~14.03(b~~10.03(b) and Section ~~14.07(a~~10.07(a), upon conversion of any Note, the Company shall ~~satisfy its Conversion Obligation by paying~~ pay or ~~delivering~~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~~ plus cash, if applicable, in lieu of ~~delivering~~ any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~14.02~~ 10.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, ~~together with~~ plus cash, if applicable, in lieu of ~~delivering~~ any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~14.02~~ 10.02 (“Combination Settlement”), at its election, as set forth in this Section ~~14.02~~10.02. (i) All conversions for which the relevant Conversion Date occurs during the Maturity Conversion Period or occurs after the Company’s issuance of a Redemption Notice ~~of Redemption~~ with respect to the Notes and prior to the related Redemption ~~Date, and all conversions for which~~ Date (the ~~relevant Conversion Date occurs on or after January 15, 2023~~“Redemption Period”), shall be settled using the same Settlement Method. (ii) ~~Except~~ Prior to the Maturity Conversion Period, except for any conversions for which the relevant Conversion Date occurs ~~after~~ during the ~~Company’s issuance of a Notice of~~ Redemption ~~with respect to the Notes but prior to the related Redemption Date, and any conversions for which the relevant Conversion Date occurs on or after January 15, 2023~~Period, the Company shall use the same Settlement Method for all conversions ~~with the same~~ occurring on a given 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 (that occurs other than during the Maturity Conversion Period or any ~~conversions for which the relevant Conversion Date occurs during a~~ Redemption Period, ~~or for which the relevant~~ in respect of any Conversion Date that occurs on during the Maturity Conversion Period or ~~after January 15~~in respect of any Conversion Date that occurs during any Redemption Period, ~~2023)~~as the case may be, the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of Conversion Dates other than during the Maturity Conversion Period or any Redemption Period, in respect of Conversion Dates that occur during the Maturity Conversion Period or in respect of Conversion Dates that occur during any such ~~Conversion Date (or such period~~Redemption Period, as the case may be), the Company, through the ~~U.S.~~ Trustee and the Conversion Agent (if other than the Trustee), shall deliver such Settlement Notice ~~in writing~~ to converting Holders (x) in the case of Conversion Dates occurring during the Maturity Conversion Period, no later than the close of business on the 25th Scheduled Trading Day immediately preceding the Maturity Date, (y) in the case of Conversion Dates occurring during any Redemption Period, in the relevant Redemption Notice and (z) in all other cases, no later than the close of business on the second Business Day immediately following the ~~relevant~~ related Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs (x) during a Redemption Period, in such Notice of Redemption, or (y) on or after January 15, 2023, no later than January 15, 2023)Date. If the Company does not elect a Settlement Method ~~with respect to a Conversion Date~~ prior to the relevant deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Combination Settlement ~~with respect to such Conversion Date,~~ and the Company shall be deemed to have elected Physical Settlement in respect of its Conversion Obligation. ~~Such~~ Any Settlement Notice shall specify the relevant Settlement Method ~~and~~ and, in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar ~~Amount~~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~~Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares in respect of~~ Stock due upon any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, 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 sum of the Daily Conversion Rate ~~in effect on~~ Fractions for each of the 20 consecutive Trading Days during the related Conversion ~~Date~~Period; (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 20 consecutive Trading Days during the related ~~Observation~~ Conversion Period; and (C) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being ~~converted,~~ converted a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 20 consecutive Trading Days during the related ~~Observation~~ Conversion Period. (v) The sum of the Daily Conversion Rate Fractions (if applicable), the Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last ~~day~~ Trading Day of the ~~Observation~~ Conversion Period. Promptly after such determination of the sum of the Daily Conversion Rate Fractions, the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and (if applicable) the amount of cash payable in lieu of ~~delivering~~ any fractional ~~share of Common Shares~~share, the Company shall notify the ~~U.S.~~ Trustee and the Conversion Agent (if other than the ~~U.S.~~ Trustee) ~~in writing~~ of the sum of the Daily Conversion Rate Fractions, the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and (if applicable) the amount of cash payable in lieu of ~~delivering~~ fractional shares of Common ~~Shares~~Stock. The ~~U.S.~~ Trustee and the Conversion Agent (if other than the ~~U.S.~~ Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~14.02(e~~10.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Note evidenced by a Global ~~Note~~Security, comply with the ~~applicable~~ procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~14.02(h~~10.02(h) and (ii) in the case of a ~~Definitive~~ Note evidenced by an Individual Security (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a ~~facsimile, PDF or other electronic transmission~~ facsimile thereof) (~~a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion,~~ a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common ~~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 ~~14.02(h~~10.02(h). The ~~U.S.~~ Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 10 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered ~~for conversion~~ by a Holder thereof if such Holder has also delivered a Repurchase Notice or Fundamental Change Repurchase Exercise Notice to the Company in respect of such Notes and ~~has~~ not validly withdrawn such Repurchase Notice or Fundamental Change Repurchase Exercise Notice in accordance with Section ~~15.03(a)~~11.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (ib) above. ~~Except as set forth in~~ Subject to Section ~~14.03(b~~10.03(b) and the last sentence of this Section ~~14.07(a~~10.02(c), 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~~ third Business Day immediately following the last Trading Day of the ~~Observation~~ relevant Conversion Period~~, in the case of any other Settlement Method~~. If any shares of Common ~~Shares~~ Stock are due to a converting ~~Holder~~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 book-entry format through the Depositary, in the case of Global Notes, or in certificated form, in the case of Definitive Notes, in each case,~~ entitled in satisfaction of the Company’s Conversion Obligation. Notwithstanding the foregoing, if, prior to the Conversion Date for any Notes surrendered for conversion, the Common Stock has been replaced by Reference Property that consists solely of cash pursuant to the provisions described under Section 10.07(a), the Company shall deliver the consideration due upon conversion on the third Trading Day immediately following the relevant Conversion Date (in which case the consideration due upon conversion shall be determined based on a Daily Conversion Rate Fraction calculated assuming that the Daily VWAP for each Trading Day in the applicable Conversion Period were equal to the per share amount of cash received by holders of the Common Stock in the relevant reclassification, recapitalization, change, consolidation, merger, binding share exchange, sale, assignment, conveyance, transfer, lease or other disposition). (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the ~~U.S.~~ Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount 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 ~~U.S.~~ Trustee, with payment of a sum sufficient to cover any ~~documentary, stamp or similar issue or~~ transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different 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 ~~issuance~~ 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 ~~U.S.~~ Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section ~~14.04~~10.04, 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 1410. (g) Upon the conversion of an interest in a Note evidenced by a Global ~~Note~~Security, the ~~U.S.~~ Trustee, or the Security Custodian at the direction of the ~~U.S.~~ Trustee, shall make a notation on such ~~Global~~ Note as to the reduction in the principal amount represented thereby. The Company shall notify the ~~U.S.~~ Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the ~~U.S.~~ Trustee. (h) Upon ~~conversion~~conversion of a Note, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company shall not adjust the Base Conversion Rate to account for accrued and unpaid interest, except that the Company shall pay on the Maturity Date accrued and unpaid interest to Holders at the close of business on the Regular Record Date immediately preceding the Maturity Date regardless of whether such Holders convert their Notes. The Company’s settlement of the ~~full~~ Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. 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~~ any Regular Record Date will receive the full amount 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 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~~ next Interest Payment Date must be accompanied by ~~funds~~ payment of an amount equal to the ~~amount of~~ interest that will be payable on the Notes so converted; ~~provided~~ provided, however, that no such payment ~~shall~~ need be ~~required~~ made (1) ~~for conversions following~~ if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date ~~immediately preceding~~ and on or prior to the ~~Maturity~~ corresponding Interest Payment Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the ~~Business Day immediately following the~~ corresponding Interest Payment Date; (3) if with respect to any Notes surrendered for conversion following the ~~Company has specified a Fundamental Change Repurchase Date that is after a~~ Regular Record Date ~~and on or prior~~ immediately preceding October 15, 2019; (4) with respect to ~~the Business Day immediately~~ any Notes surrendered for conversion following the ~~corresponding Interest Payment~~ Regular Record Date immediately preceding the Maturity Date; or (45) to the extent of any Defaulted ~~Amounts~~Interest, if any Defaulted ~~Amounts~~ Interest exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date 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 (or is deemed to have elected) to satisfy the related Conversion Obligation by Physical Settlement) or the~~ last Trading Day of the ~~relevant Observation Period (if the Company elects 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. (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~~ Last Trading Day of the relevant ~~Observation Period (in the case of Combination Settlement)~~Conversion Period. 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 Conversion Rate Fractions, the aggregate Daily Settlement Amounts or the aggregate Daily Conversion Values, as the case may be, for each of the 20 Trading Days during the relevant ~~Observation~~ Conversion Period and any fractional shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Samples: First Supplemental Indenture (Stillwater Mining Co /De/)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b), Section 14.07(a) and Section ~~14.07(a)~~14.12, upon conversion of any Note, the Company shall ~~satisfy its Conversion Obligation by paying~~ pay or ~~delivering~~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 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 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02. Notwithstanding the foregoing, to the extent the Board of Directors determines in good faith that the issuance of any shares of Common Stock upon any conversion of the Notes or in respect of any Make-Whole Premium could cause the Company to undergo an “ownership change” as defined in Section 382 of the Internal Revenue Code of 1986, as amended, and the Treasury Regulations promulgated thereunder or otherwise could materially and adversely affect the Company’s ability to preserve its ability to utilize its net operating loss carryforwards for U.S. federal income tax purposes, the Company shall be required to elect to settle such conversion through Cash Settlement or Combination Settlement and to settle such Make-Whole Premium in cash or in a combination of cash and shares of Common Stock, in each case, to the extent of such determination. (i) All conversions for which the relevant Conversion Date occurs on or after March 15, 2021, and all conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice ~~of Redemption~~ with respect to the Notes and prior to the related Redemption Date~~, and all conversions for which the relevant Conversion Date occurs on or after January 15, 2023~~, 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 ~~of Redemption~~ with respect to the Notes but prior to the related Redemption Date, ~~and~~ any conversions for which the relevant Conversion Date occurs on or after ~~January~~ March 15, ~~2023~~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 ~~any conversions for which~~ one of the ~~relevant Conversion Date occurs during a Redemption Period~~periods described in the third immediately succeeding set of parentheses, ~~or for which~~ as the ~~relevant Conversion Date occurs on or after January 15, 2023~~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 U.S. Trustee,~~ Company shall deliver ~~such~~ or cause delivery of a notice (the “Settlement ~~Notice in writing~~ Notice”) of the relevant Settlement Method to converting Holders and the Conversion Agent (and the Trustee if not the Conversion Agent) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs (x) ~~during~~ after the date of issuance of a Redemption ~~Period~~Notice with respect to the Notes and prior to the related Redemption Date, in such Redemption Notice ~~of Redemption,~~ or (y) on or after ~~January~~ March 15, ~~2023~~2021, no later than ~~January~~ March 15, ~~2023~~2021). If the Company does not elect a Settlement Method with respect to a Conversion Date prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Combination Settlement with respect to such Conversion Date, and the Company shall be deemed to have elected Physical Settlement in respect of its Conversion Obligation. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar ~~Amount~~Amount per $1,000 principal amount of Notes. 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. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar ~~Amount~~Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. For the avoidance of doubt, this clause (iii) and the provisions hereof are subject to the provisions of Section 14.12. (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 ~~(or is deemed to have elected)~~ to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of 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 20 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, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 20 30 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 ~~Shares~~Stock, the Company shall notify the ~~U.S.~~ Trustee and the Conversion Agent (if other than the ~~U.S.~~ 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 ~~U.S.~~ Trustee and the Conversion Agent (if other than the ~~U.S.~~ Trustee) shall have no responsibility for any such determination. (b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the ~~applicable~~ procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a Definitive Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any 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 14.02(h). The U.S. Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03(a). If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (i) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any Common Shares are due to a converting Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of Common Shares to which such Holder shall be entitled, in book-entry format through the Depositary, in the case of Global Notes, or in certificated form, in the case of Definitive Notes, in each case, in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the U.S. Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount 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 U.S. Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different 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 issuance 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 U.S. Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any Common Shares issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the U.S. Trustee, or the Custodian at the direction of the U.S. Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the U.S. Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the U.S. Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes 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 the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date 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 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 (or is deemed to have elected) to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common Shares upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of 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 shares remaining after such computation shall be paid in cash.in

Appears in 1 contract

Samples: Indenture (Par Pacific Holdings, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the Company shall ~~satisfy its Conversion Obligation by paying~~ pay or ~~delivering~~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 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 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02. (i) All conversions for which the relevant Conversion Date occurs on or after February 1, 2024, and all conversions for which the relevant Conversion Date occurs on or after the Company’s issuance of a Notice of Redemption with respect to the Notes and prior to the related Redemption Date~~, and all conversions for which the relevant Conversion Date occurs on or after January 15, 2023~~, shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs on or after February 1, 2024, and any conversions for which the relevant Conversion Date occurs on or after the Company’s issuance of a Notice of Redemption with respect to the Notes but prior to the related Redemption Date~~, and any conversions for which the relevant Conversion Date occurs on or after January 15, 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 ~~any conversions for which~~ one of the ~~relevant Conversion Date occurs during a Redemption Period~~periods described in the third immediately succeeding set of parentheses, ~~or for which~~ as the ~~relevant Conversion Date occurs on or after January 15, 2023~~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 ~~U.S.~~ Trustee, shall deliver such Settlement Notice ~~in writing~~ to converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs (x) ~~during~~ after the date of issuance of a Notice of Redemption ~~Period~~with respect to the Notes and prior to the related Redemption Date, in such Notice of Redemption, or (y) on or after ~~January 15~~February 1, ~~2023~~2024, no later than ~~January 15~~February 1, ~~2023~~2024). If the Company does not elect a Settlement Method ~~with respect to a Conversion Date~~ prior to the deadline set forth in the immediately preceding sentence, the Company shall ~~no longer have~~ settle such conversions using the ~~right to elect Cash~~ Default Settlement ~~or Combination Settlement with respect to such Conversion Date, and the Company shall be deemed to have elected Physical Settlement in respect of its Conversion Obligation~~Method. Such Settlement Notice shall specify the relevant Settlement Method ~~and~~ and, in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar ~~Amount~~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~~Amount per $1,000 principal amount of Notes in such Settlement Notice, or if Combination Settlement otherwise applies but the Company does not timely notify holders of the Specified Dollar Amount per $1,000 principal amount of Notes, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. At any time prior to February 1, 2024, the Company may irrevocably elect to settle all conversions occurring on or after the date the Company gives notice thereof to Holders, the Trustee and the Conversion Agent (if other than the Trustee) through Combination Settlement with a Specified Dollar Amount the Company elects. (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 (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of 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 (or is deemed to have elected) 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 20 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 20 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 ~~Shares~~Stock, the Company shall notify the ~~U.S.~~ Trustee and the Conversion Agent (if other than the ~~U.S.~~ 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 ~~U.S.~~ Trustee and the Conversion Agent (if other than the ~~U.S.~~ Trustee) shall have no responsibility for any such determination. (b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the ~~applicable procedures~~ Applicable Procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a ~~Definitive~~ Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (~~a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion,~~ a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common ~~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 14.02(h). The ~~U.S.~~ Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered ~~for conversion~~ by a Holder thereof if such ~~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 ~~15.03(a)~~15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. Any exercise by a Holder of its conversion rights in respect of a Note shall be irrevocable. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (ib) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the ~~second~~ third Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the ~~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 ~~Holder~~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 book-entry format through the Depositary, in the case of Global Notes, or in certificated form, in the case of Definitive Notes, in each case,~~ entitled in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall ~~execute~~ execute, and the ~~U.S.~~ Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so ~~surrendered~~ surrendered, a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or ~~U.S.~~ Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different 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 ~~issuance~~ 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 ~~U.S.~~ Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common ~~Shares~~ Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the ~~U.S.~~ Trustee, or the Custodian (if other than the Trustee) at the direction of the ~~U.S.~~ Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the ~~U.S.~~ Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the ~~U.S.~~ Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes 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 the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, any Redemption Date described in clause (2) of the immediately preceding sentence and any Fundamental Change Repurchase Date described in clause (3) of the immediately preceding sentence shall receive the full interest payment due on the Maturity Date ~~in cash~~ 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 ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (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~~ Period, and any fractional shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Samples: Indenture (Pacira BioSciences, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying or 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 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 14.02 (“Combination Settlement”), at its election, based on the applicable Conversion Rate, as set forth in this Section 14.02. (i) All conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice ~~of Redemption~~ with respect to the Notes and prior to the related Redemption Date, and all conversions for which the relevant Conversion Date occurs on or after January 151, ~~2023,~~ 2024 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 ~~of Redemption~~ with respect to the Notes but prior to the related Redemption Date, and any conversions for which the relevant Conversion Date occurs on or after January 151, ~~2023~~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 ~~any conversions for which~~ one of the ~~relevant Conversion Date occurs during a Redemption Period~~periods described in the third immediately succeeding set of parentheses, ~~or for which~~ as the ~~relevant Conversion Date occurs on or after January 15, 2023~~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 ~~U.S.~~ Trustee and the Conversion Agent (if other than the Trustee), shall deliver such Settlement Notice ~~in writing~~ to converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs (x) ~~during~~ after the date of issuance of a Redemption ~~Period~~Notice with respect to the Notes and prior to the related Redemption Date, in such Redemption Notice ~~of Redemption,~~ or (y) on or after January 151, ~~2023~~2024, no later than January 151, ~~2023~~2024). If the Company does not elect a Settlement Method ~~with respect to a Conversion Date~~ prior to the deadline set forth in the immediately preceding sentence, the Company shall ~~no longer have the right to elect Cash Settlement or Combination Settlement with respect to such Conversion Date, and the Company shall~~ be deemed to have elected ~~Physical~~ Combination Settlement in respect of its Conversion ~~Obligation~~Obligation and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000 (the “Default Settlement Method”). Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar ~~Amount~~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~~Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. For the avoidance of doubt, the Company’s failure to timely elect a Settlement Method or indicate a Specified Dollar Amount shall not constitute a Default. The Company may, from time to time, change the Default Settlement Method by delivering a notice of the new Default Settlement Method to Holders, the Trustee and the Conversion Agent (if other than the Trustee). In addition, the Company may, by notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee), irrevocably fix the Settlement Method, to any Settlement Method that the Company is then permitted to elect pursuant to the terms of this Indenture, that will apply to all conversions with a Conversion Date that is after the date the Company delivers such notice. Concurrently with providing notice to Holders of a change in the Default Settlement Method or an election to irrevocably fix the Settlement Method, the Company shall promptly issue a report on Form 8-K or press release announcing that it has made such change to the Default Settlement Method or elected to irrevocably fix the Settlement Method, as the case may be. For the avoidance of doubt, any election to irrevocably fix the Settlement Method, if made, shall be effective without the need to amend this Indenture or the Notes, including pursuant to the provisions of Section 10.01(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 ~~(or is deemed to have elected)~~ to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of 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 20 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 20 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 ~~Shares~~Stock, the Company shall notify the ~~U.S.~~ Trustee and the Conversion Agent (if other than the ~~U.S.~~ 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 ~~U.S.~~ Trustee and the Conversion Agent (if other than the ~~U.S.~~ Trustee) shall have no responsibility for any such determination. (b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a ~~Definitive~~ Physical Note (or a Global Note with conversions processed outside of the Depositary) (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a ~~facsimile, PDF or other electronic transmission~~ facsimile thereof) (~~a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion,~~ a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any 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~~required by the Trustee or the Conversion Agent, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The ~~U.S.~~ Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered ~~for conversion~~ by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~15.03(a)~~15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the ~~date~~ first Business Day (the “Conversion Date”) ~~that~~ on which the Holder has complied with the requirements set forth in subsection (ib) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to a converting Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to the ~~Conversion Agent or to such~~ 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 book-entry format through the Depositary~~, in the case of Global Notes, or in certificated form, in the case of Definitive Notes, in each case~~, in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the ~~U.S.~~ Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount 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 ~~U.S.~~ Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different 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 ~~issuance~~ 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 ~~U.S.~~ Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common ~~Shares~~ Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the ~~U.S.~~ Trustee, or the Custodian (if other than the Trustee) at the direction of the ~~U.S.~~ Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the ~~U.S.~~ Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the ~~U.S.~~ Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes 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~~ corresponding Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any ~~Defaulted Amounts~~overdue interest, if any ~~Defaulted Amounts~~ overdue interest exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date 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 ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (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 shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Samples: Indenture (Under Armour, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~14.02~~13.02, Section ~~14.03(b~~13.03(b) and Section ~~14.07(a~~13.07(a), upon conversion of any Note, the Company shall ~~satisfy its Conversion Obligation by paying~~ pay or ~~delivering~~deliver (or otherwise cause to be delivered), 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 14.02~~ (“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 14.02~~ (“Combination Settlement”), at its election, as set forth in this Section ~~14.02~~13.02. (i) All conversions for which the relevant Conversion Date occurs on or after the date of the Company’s issuance of a Redemption Notice ~~of Redemption~~ with respect to ~~the~~ any Notes and prior to the related Redemption Date, and all conversions for which the relevant Conversion Date occurs on or after ~~January 15~~November 3, ~~2023,~~ 2025 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 ~~of Redemption~~ with respect to the Notes but prior to the related Redemption ~~Date,~~ Date and any conversions for which the relevant Conversion Date occurs on or after ~~January 15~~November 3, ~~2023~~2025, 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 ~~any conversions for which~~ one of the ~~relevant Conversion Date occurs during a Redemption Period~~periods described in the third immediately succeeding set of parentheses, ~~or for which~~ as the ~~relevant Conversion Date occurs on or after January 15, 2023~~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 U.S. Trustee,~~ Company shall deliver such Settlement Notice ~~in writing~~ to converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions (x) of any Notes for which the relevant Conversion Date occurs (~~x) during a Redemption Period, in such Notice of Redemption, or (y~~A) on or after ~~January 15~~the date of issuance of a Redemption Notice and prior to the related Redemption Date, ~~2023~~in such Redemption Notice or (B) on or after November 3, 2025, no later than ~~January 15~~the close of business on the Business Day immediately preceding November 3, ~~2023~~2025, (y) for which the Company has irrevocably elected Physical Settlement pursuant to Section 13.01(b)(ii), in the related notice described therein or (z) for which the Company has made an Irrevocable Election pursuant to this Section 13.02(a)(iii), in the Company’s notice of such Irrevocable Election to the Holders). If the Company does not elect a Settlement Method with respect to ~~a Conversion Date~~ 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 Combination Settlement with respect to such Conversion Date, and~~ then the Company shall be deemed to have elected ~~Physical~~ the Default Settlement Method in respect of ~~its Conversion Obligation~~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. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar ~~Amount~~Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. For the avoidance of doubt, the Company’s failure to so select a Settlement Method or Specified Dollar Amount when so permitted shall not constitute a Default or Event of Default under this Indenture or the Notes. Subject to Section 13.02(a)(iv), by notice to the Holders (with a copy to the Trustee and the Conversion Agent), the Company may change the Default Settlement Method to any permitted Settlement Method. In addition, subject to Section 13.02(a)(iv), (A) the Company may, by notice to the Holders (with a copy to the Trustee and the Conversion Agent), which notice shall be delivered by filing a Current Report on Form 8-K (or successor form thereto), irrevocably elect to either (x) fix the Settlement Method to any Settlement Method that the Company is then permitted to elect; or (y) eliminate the Company’s right to elect one or more particular Settlement Methods (each, an “Irrevocable Election”); and (B) any Irrevocable Election, if made, will apply to all Note conversions with a Conversion Date that is on or after the date the Company sends notice of such Irrevocable Election to the Holders. For the avoidance of doubt, any Irrevocable Election, if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(i). However, the Company may nonetheless choose to execute such an amendment at its option. (iv) Notwithstanding anything to the contrary in Section 13.02(a)(iii), the Company may not change the Default Settlement Method or make an Irrevocable Election (x) during any Redemption Period (in respect of Notes converted with a Conversion Date occurring during such Redemption Period), (y) for any conversions for which the Company has irrevocably elected Physical Settlement to apply pursuant to Section 13.01(b)(ii) or (z) on or after November 3, 2025 (in respect of Notes converted with a Conversion Date that occurs on or after November 3, 2025). (v) 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 (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder follows in respect of each $1,000 principal amount of Notes being ~~converted~~ converted: (A) if Physical Settlement applies to such conversion, a number of shares of Common ~~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 20 40 consecutive VWAP Trading Days during the related Observation Period; and (C) if ~~the Company elects~~ Combination Settlement applies 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~~conversion, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 20 40 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 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 Shares, the Company shall notify the U.S. Trustee and the Conversion Agent (if other than the U.S. 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 Common Shares. The U.S. Trustee and the Conversion Agent (if other than the U.S. Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~14.02(e~~13.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the ~~applicable~~ procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date ~~to which such Holder is not entitled~~ as set forth in Section ~~14.02(h~~13.02(h) and (ii) in the case of a ~~Definitive~~ Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a ~~facsimile, PDF or other electronic transmission~~ facsimile thereof) (~~a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion,~~ a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common ~~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 ~~14.02(h~~13.02(h). The ~~U.S.~~ Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 13 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered ~~for conversion~~ by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~15.03(a)~~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. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (ib) above. Except as set forth in Section ~~14.03(b~~13.03(b) and Section ~~14.07(a~~13.07(a), the Company shall pay or ~~deliver~~deliver (or otherwise cause to be delivered), 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 January 15, 2026. If any shares of Common ~~Shares~~ Stock are due to a converting 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 book-entry format through the Depositary~~, in the case of Global Notes, or in certificated form, in the case of Definitive Notes, in each case~~, in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the ~~U.S.~~ Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount 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 ~~U.S.~~ Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different 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 ~~issuance~~ 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 ~~U.S.~~ Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section ~~14.04~~13.04, no adjustment shall be made for dividends on any shares of Common ~~Shares~~ Stock issued upon the conversion of any Note as provided in this Article 1413. (g) Upon the conversion of an interest in a Global Note, the ~~U.S.~~ Trustee, or the Custodian at the direction of the ~~U.S.~~ Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the ~~U.S.~~ Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the ~~U.S.~~ Trustee. (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 will not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common ~~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 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~~ 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 ~~Fundamental Change Repurchase~~ 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 (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record as of the close of business on the Regular Record Date immediately preceding the Maturity Date, 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 (or is deemed~~ Physical Settlement applies to ~~have elected) 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~~ Combination Settlement applies 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 shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Samples: Indenture (Repay Holdings Corp)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the Company shall ~~satisfy its Conversion Obligation by paying~~ pay or ~~delivering~~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 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 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02. (i) All conversions for which the relevant Conversion Date occurs on or after August 1, 2024, and all conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Notice of Redemption with respect to ~~the~~ any Notes and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date~~, and all conversions for which the relevant Conversion Date occurs on or after January 15, 2023~~, 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 Notice of Redemption with respect to ~~the~~ any Notes but prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption ~~Date,~~ Date and any conversions for which the relevant Conversion Date occurs on or after ~~January 15~~August 1, ~~2023~~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 ~~any conversions for which~~ the ~~relevant Conversion Date occurs during a Redemption Period~~period described in the third immediately succeeding set of parentheses, ~~or for which~~ as the ~~relevant Conversion Date occurs on or after January 15, 2023~~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 ~~U.S.~~ Trustee, shall deliver such Settlement Notice ~~in writing~~ to converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs (x) ~~during~~ after the date of issuance of a Notice of Redemption ~~Period~~with respect to the Notes and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date, in such Notice of ~~Redemption,~~ Redemption or (y) on or after ~~January 15~~August 1, ~~2023~~2024, no later than ~~January~~ August 15, ~~2023~~2024). If the Company does not elect a Settlement Method ~~with respect to a Conversion Date~~ prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or ~~Combination~~ Physical Settlement ~~with respect to such Conversion Date,~~ and the Company shall be deemed to have elected ~~Physical~~ 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~~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~~Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. (iv) The cash, shares of Common ~~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 ~~(or is deemed to have elected)~~ to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of 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 (or is deemed to have elected) 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 20 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, ~~to the converting Holder~~ in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 20 30 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 ~~Shares~~Stock, the Company shall notify the ~~U.S.~~ Trustee and the Conversion Agent (if other than the ~~U.S.~~ 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 ~~U.S.~~ Trustee and the Conversion Agent (if other than the ~~U.S.~~ Trustee) shall have no responsibility for any such determination. (b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the ~~applicable~~ procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a ~~Definitive~~ Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a ~~facsimile, PDF or other electronic transmission~~ facsimile thereof) (~~a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion,~~ a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common ~~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 14.02(h). The ~~U.S.~~ Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered ~~for conversion~~ by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~15.03(a)~~15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (ib) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to a converting ~~Holder~~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 through the Depositary, in the case of Global Notes, or in certificated form, in the case of Definitive Notes, in each case~~format, in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the ~~U.S.~~ Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount 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 ~~U.S.~~ Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different 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 ~~issuance~~ 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 Common ~~Shares~~ Stock being issued in a name other than the Holder’s name until the ~~U.S.~~ Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common ~~Shares~~ Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the ~~U.S.~~ Trustee, or the Custodian at the direction of the ~~U.S.~~ Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the ~~U.S.~~ Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the ~~U.S.~~ Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes 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 the Notes so converted; provided that no such payment shall be required (1) for conversions ~~following~~ after the close of business on the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a ~~Redemption~~ 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 ~~Fundamental Change Repurchase~~ Redemption Date that is after a Regular Record Date and on or prior to the ~~Business~~ second Scheduled Trading Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all applicable Holders of record at the close of business on the Regular Record Date immediately preceding the Maturity Date or any Redemption Date shall receive the full interest payment due on the Maturity Date ~~in cash~~ or any Redemption Date, as the case may be, 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 of record as of the close of business on the relevant Conversion Date (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (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 shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Samples: Indenture (Wayfair Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this ~~Section~~ ‎Section 14.02, ~~Section~~ ‎Section 14.03(b) ), and ~~Section~~ ‎Section 14.07(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying or 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~~ ‎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~~ ‎Section 14.02 (“Combination Settlement”), at its election, as set forth in this ~~Section~~ ‎Section 14.02. (i) All conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Notice of Redemption with respect to the Notes and prior to the related Redemption Date, and all conversions for which the relevant Conversion Date occurs occurring (x) on or after ~~January~~ March 15, ~~2023~~2030, (y) during a Redemption Period or (z) during the period after delivery to the Holders of a Certain Distributions Notification until the related Certain Distributions Conversion Period End 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 Notice of Redemption with respect to the Notes but prior to the related Redemption Date, and any conversions for which the relevant Conversion Date occurs~~ (x) on or after ~~January~~ March 15, ~~2023~~2030, (y) during a Redemption Period or (z) during the period after delivery to the Holders of a Certain Distributions Notification until the related Certain Distributions Conversion Period End 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) (A) If, in respect of any Conversion Date (or ~~any conversions for which~~ one of the ~~relevant Conversion Date occurs during a Redemption Period~~periods described in the fourth immediately succeeding set of parentheses, ~~or for which~~ as the ~~relevant Conversion Date occurs on or after January 15, 2023~~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 ~~U.S.~~ Conversion Agent (if other than the Trustee~~, shall deliver such Settlement Notice in writing to converting Holders~~ ) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions ~~for which the relevant Conversion Date occurs~~ occurring (x) during a Redemption Period, in such ~~Notice~~ Redemption Notice, (y) during the period after delivery to the Holders of ~~Redemption,~~ a Certain Distributions Notification until the related Certain Distributions Conversion Period End Date in such Certain Distributions Notification or (yz) on or after ~~January~~ March 15, ~~2023~~2030, no later than ~~January~~ the close of business on the Business Day immediately preceding March 15, ~~2023~~2030) (in each case, the “Settlement Method Election Deadline”). If the Company does not timely elect a Settlement Method with respect to ~~a Conversion Date~~ any conversion prior to the ~~deadline set forth in the immediately preceding sentence~~Settlement Method Election Deadline, ~~the Company shall no longer have the right to elect Cash Settlement or Combination Settlement with respect to such Conversion Date, and~~ then the Company shall be deemed to have elected ~~Physical~~ the Default Settlement in Method with respect ~~of its Conversion Obligation~~to such Conversion. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar ~~Amount~~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,~~ Amount then the Specified Dollar Amount ~~shall~~ for such conversion will be deemed to be $1,000. (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 (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each 1,000 per $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 20 consecutive Trading Days during the related Observation Period; and (C) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 20 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 PeriodNotice. 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 Shares, the Company shall notify the U.S. Trustee and the Conversion Agent (if other than the U.S. 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 Common Shares. The U.S. Trustee and the Conversion Agent (if other than the U.S. Trustee) shall have no responsibility for any such determination. (b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a Definitive Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any 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 14.02(h). The U.S. Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03(a). If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (i) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any Common Shares are due to a converting Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of Common Shares to which such Holder shall be entitled, in book-entry format through the Depositary, in the case of Global Notes, or in certificated form, in the case of Definitive Notes, in each case, in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the U.S. Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount 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 U.S. Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different 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 issuance 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 U.S. Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any Common Shares issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the U.S. Trustee, or the Custodian at the direction of the U.S. Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the U.S. Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the U.S. Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes 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 the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for For the avoidance of doubt, ~~all Holders of record on~~ the ~~Regular Record Date immediately preceding~~ Company’s failure to timely elect a Settlement Method or specify 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~~applicable Specified Dollar Amount will not constitute a default 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 (or is deemed to have elected) to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common Shares upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of 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 shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Samples: Indenture (Esperion Therapeutics, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying or 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 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 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~the Company’s issuance of a Notice of Redemption with respect to the Notes and prior to the related Redemption Date~~January 15, 2024, and all conversions for which the relevant Conversion Date occurs ~~on or after January 15, 2023~~during a Redemption Period, 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~~ during a ~~Notice of~~ Redemption ~~with respect to the Notes but prior to the related Redemption Date~~Period, and any conversions for which the relevant Conversion Date occurs on or after January 15, ~~2023~~2024, and except to the extent the Company elects Physical Settlement to apply pursuant to Section 14.01(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. In addition, if the Company calls any Notes for redemption pursuant to Article 16, and the related Redemption Date is on or after January 15, 2024, then the Settlement Method during the Redemption Period must be the same Settlement Method that applies to all conversions with a Conversion Date that occurs on or after January 15, 2024. (iii) If, in respect of any Conversion Date (or any conversions for which the relevant Conversion Date occurs during a Redemption Period, or for which the relevant Conversion Date occurs on or after January 15, ~~2023~~2024), 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 U.S. Trustee,~~ Company shall deliver such Settlement Notice ~~in writing~~ to converting Holders in writing (or if the Notes are then in global form through the applicable procedures of the Depositary), through the Conversion Agent (copied to the Trustee), no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs (x) during a Redemption Period, in ~~such~~ the applicable Notice of ~~Redemption,~~ Redemption or (y) on or after January 15, ~~2023~~2024, no later than the close of business on the Business Day immediately preceding January 15, ~~2023~~2024). If the Company does not elect a Settlement Method ~~with respect to a Conversion Date~~ prior to the deadline set forth in the immediately preceding sentence, the Company shall ~~no longer have the right to elect Cash Settlement or Combination Settlement with respect to such Conversion Date, and the Company shall~~ be deemed to have elected ~~Physical~~ the Default Settlement in respect of its Conversion Obligation. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar AmountMethod. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar ~~Amount~~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 the Holders, the Company may change the Default Settlement Method to any permitted Settlement Method, except it may not change the Default Settlement Method during any Redemption Period (in respect of Notes converted with a Conversion Date occurring during such Redemption Period) or on or after January 15, 2024 (in respect of Notes converted with a Conversion Date that occurs on or after January 15, 2024). (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 ~~(or is deemed to have elected)~~ to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of 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 20 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, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 20 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 ~~Shares~~Stock, the Company shall notify the ~~U.S.~~ Trustee and the Conversion Agent (if other than the ~~U.S.~~ 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 ~~U.S.~~ Trustee and the Conversion Agent (if other than the ~~U.S.~~ Trustee) shall have no responsibility for any such determination. (b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a ~~Definitive~~ Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common ~~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~~documents in a form reasonably satisfactory to the Conversion Agent), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents in a form reasonably satisfactory to the Conversion Agent and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The ~~U.S.~~ Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~15.03(a)~~15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (ib) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method, 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) on the Maturity Date. If any shares of Common ~~Shares~~ Stock are due to a converting Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be entitled, in book-entry format through the Depositary~~, in the case of Global Notes, or in certificated form, in the case of Definitive Notes, in each case~~, in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the ~~U.S.~~ Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount 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 ~~U.S.~~ Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different 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 ~~issuance~~ 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 ~~U.S.~~ Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common ~~Shares~~ Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the ~~U.S.~~ Trustee, or the Custodian at the direction of the ~~U.S.~~ Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the ~~U.S.~~ Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the ~~U.S.~~ Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth ~~below~~in this Section 13.02(h), and the Company will not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common ~~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 the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the ~~Business Day~~ Scheduled Trading Date immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date 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 ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (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 shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Samples: Indenture (Turning Point Brands, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying or 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”), Common Shares, together with cash, if applicable, in lieu of delivering any fractional share of Common Shares in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”) or a combination of cash and Common Shares, together with cash, if applicable, in lieu of delivering any fractional share of Common Shares in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02. (i) All conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Notice of Redemption with respect to the Notes and prior to the related Redemption Date, and all conversions for which the relevant Conversion Date occurs on or after ~~January 15~~August 31, 2023, 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 Notice of Redemption with respect to the Notes but prior to the related Redemption Date, and any conversions for which the relevant Conversion Date occurs on or after ~~January 15~~August 31, 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 any conversions for which the relevant Conversion Date occurs during a Redemption Period, or for which the relevant Conversion Date occurs on or after ~~January 15~~August 31, 2023), 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 ~~U.S.~~ Trustee, shall deliver such Settlement Notice in writing to converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs (x) during a Redemption Period, in such Notice of Redemption, or (y) on or after ~~January 15~~August 31, 2023, no later than ~~January 15~~August 31, 2023). If the Company does not elect a Settlement Method with respect to a Conversion Date prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Combination Settlement with respect to such Conversion Date, and the Company shall be deemed to have elected Physical Settlement in respect of its Conversion Obligation. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount, the Specified Dollar Amount shall be deemed to be $1,000. (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 (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of 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 20 consecutive Trading Days during the related Observation Period; and (C) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 20 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 Shares, the Company shall notify the ~~U.S.~~ Trustee and the Conversion Agent (if other than the ~~U.S.~~ 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 Common Shares. The ~~U.S.~~ Trustee and the Conversion Agent (if other than the ~~U.S.~~ Trustee) shall have no responsibility for any such determination. (b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a Definitive Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any 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 14.02(h). The ~~U.S.~~ Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03(a). If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (i) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any Common Shares are due to a converting Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of Common Shares to which such Holder shall be entitled, in book-entry format through the Depositary, in the case of Global Notes, or in certificated form, in the case of Definitive Notes, in each case, in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the ~~U.S.~~ Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount 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 ~~U.S.~~ 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 issuance 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 ~~U.S.~~ Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any Common Shares issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the ~~U.S.~~ Trustee, or the Custodian at the direction of the ~~U.S.~~ Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the ~~U.S.~~ Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the ~~U.S.~~ Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes 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 the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date 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 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 (or is deemed to have elected) to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common Shares upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of 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 shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Samples: Indenture (Aurora Cannabis Inc)

Conversion Procedure; Settlement Upon Conversion. (a) ~~Subject to this~~ Except as provided in Section ~~14.02, Section 14.03(b~~13.03(b) and Section ~~14.07(a~~13.07(a), upon conversion of any Note, the Company shall ~~satisfy its Conversion Obligation by paying~~ pay or ~~delivering~~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 ~~14.02~~ 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 ~~14.02~~ 13.02 (“Combination Settlement”), at ~~its~~ the Company’s election, as ~~set forth in this Section 14.02~~the case may be, as described below. (i) All conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Notice of Redemption with respect to the Notes and prior to the related Redemption Date, and all conversions for which the relevant Conversion Date occurs occurring on or after ~~January 15~~December 1, ~~2023~~2036, 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 Notice of Redemption with respect~~ . Prior to ~~the Notes but prior to the related Redemption Date~~December 1, ~~and any conversions for which the relevant Conversion Date occurs on or after January 15, 2023~~2036, 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 for which~~ . If the ~~relevant Conversion Date occurs during~~ Company elects a ~~Redemption Period, or for which the relevant Conversion Date occurs on or after January 15, 2023)~~Settlement Method, the Company ~~elects~~ shall notify converting Holders in writing, through the Trustee upon its receipt of a written instruction from the Company to ~~deliver a~~ send such notification, such instruction to contain the form of notice to be so given, of the Settlement Method it has selected (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 U.S. Trustee, shall deliver such Settlement Notice in writing to converting Holders no later than the close of business on the Trading Day immediately following the ~~relevant~~ related Conversion Date (or, in the case of any conversions ~~for which the relevant Conversion Date occurs (x) during a Redemption Period, in such Notice of Redemption, or (y)~~ occurring on or after ~~January 15~~December 1, ~~2023~~2036, no later than ~~January 15~~the close of business on the Scheduled Trading Day immediately preceding December 1, ~~2023~~2036, such notice to be given to all Holders, whether or not converting). If the Company does not so elect a Settlement Method ~~with respect to a 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 ~~Combination~~ Physical Settlement ~~with respect to such Conversion Date,~~ and the Company shall be deemed to have elected ~~Physical~~ Combination Settlement in respect of to its Conversion Obligation~~. Such Settlement Notice shall specify the relevant Settlement Method~~ , and ~~in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate~~ the Specified Dollar ~~Amount~~Amount per $1,000 principal amount of Notes will be equal to $1,000. If the Company ~~delivers a Settlement Notice electing~~ elects Combination ~~Settlement in respect of its Conversion Obligation~~ Settlement, but does not ~~indicate a Specified Dollar Amount,~~ timely notify converting holders of the Specified Dollar Amount ~~shall~~ per $1,000 principal amount of Notes, such Specified Dollar Amount will be deemed to be $1,000. At any time on or prior to December 1, 2036, the Company may irrevocably elect (a “Net Share Settlement Election”) to satisfy the conversion obligation with respect to any Notes to be converted after the date of such election through Combination Settlement with a Specified Dollar Amount of $1,000 per $1,000 principal amount of Notes. The Company may make a Net Share Settlement Election at its sole discretion without the consent of the Holders. Upon making a Net Share Settlement Election, the Company will promptly (i) use reasonable efforts to post such information on its website or otherwise publicly disclose such information and (ii) provide written notice to the Trustee and the Conversion Agent (if other than the Trustee) and to the Holders by mailing such notice to Holders at their address in the Register (in the case of a Physical Note), or through the facilities of the Depositary (in the case of a Global Note). (ivii) 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 If the Company elects ~~(or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by~~ Physical Settlement, the Company ~~shall~~ will deliver to ~~the~~ converting ~~Holder~~ holdings in respect of each $1,000 principal amount of ~~Notes~~ notes being converted a number of shares of the Company’s Common ~~Shares~~ Stock equal to the Conversion ~~Rate~~ Rate, together with cash, if applicable, in ~~effect on the Conversion Date~~lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 13.02; (B) if If the Company elects ~~to satisfy its Conversion Obligation in respect of such conversion by~~ Cash Settlement, the Company ~~shall~~ will pay to ~~the~~ converting ~~Holder~~ Holders in respect of each $1,000 principal amount of ~~Notes~~ notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 20 40 consecutive Trading Days ~~during~~ in the ~~related~~ relevant Observation Period; and (C) if If the Company elects (or is deemed to ~~satisfy its Conversion Obligation in respect of such conversion by~~ have elected) Combination Settlement, the Company ~~shall~~ will pay or deliver, as the case may be, to ~~the~~ converting ~~Holder~~ Holders in respect of each $1,000 principal amount of Notes being ~~converted,~~ converted a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 20 40 consecutive Trading Days ~~during~~ in the ~~related~~ relevant Observation Period, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 13.02. (viii) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the applicable Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of ~~delivering~~ any fractional ~~share of Common Shares~~share, the Company shall notify the ~~U.S.~~ Trustee and the Conversion Agent (if other than the ~~U.S.~~ 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 ~~U.S.~~ Trustee and the Conversion Agent (if other than the ~~U.S.~~ Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~14.02(e~~13.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the ~~applicable~~ procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~14.02(h~~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 ~~Definitive~~ Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a ~~facsimile, PDF or other electronic transmission~~ facsimile thereof) (~~a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion,~~ a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common ~~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 ~~14.02(h~~13.02(h). The ~~U.S.~~ Trustee (~~and~~ and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 XIII on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be ~~surrendered for conversion~~ delivered 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 ~~15.03(a)~~14.03. Nothing herein shall preclude any withholding of tax required by law. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (ib) above. ~~Except as set forth in Section 14.03(b) and Section 14.07(a), the~~ The Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the ~~second~~ third Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the ~~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 ~~Holder~~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 book-entry format through the Depositary, in the case of Global Notes, or in certificated form, in the case of Definitive Notes, in each case,~~ entitled in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the ~~U.S.~~ Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount 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 U.S. 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 ~~issuance~~ 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 ~~U.S.~~ Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section ~~14.04~~13.04, no adjustment shall be made for dividends on any ~~Common Shares~~ shares issued upon the conversion of any Note as provided in this Article 14XIII. (g) Upon the conversion of an interest in a Global Note, the ~~U.S.~~ Trustee, or the Custodian at the direction of the ~~U.S.~~ Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the ~~U.S.~~ Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the ~~U.S.~~ Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the ~~full~~ Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but ~~not including~~excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~not including~~excluding, ~~the relevant~~ such Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of the Company’s Common ~~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 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 Repurchase Date or Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (43) to the extent of any Defaulted Amounts, if any Defaulted Amounts ~~exists~~ exist at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of ~~record~~ Notes on the Regular Record Date immediately preceding the Maturity Date ~~shall~~ and the Repurchase Date or Redemption Date described in (1) and (2) of this paragraph will receive the full interest payment due on the Maturity Date ~~in cash~~ 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 ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects (or is deemed to have elected) to satisfy the related Conversion Obligation by Combination Settlement), as the case may be, subject to Sections 13.04(c) and 13.04(e). Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (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 on, in the case of Combination Settlement, the Daily VWAP ~~for~~ on the ~~relevant Conversion Date (~~Last Trading Day of the applicable Observation Period, or, in the case of Physical Settlement~~) or~~ , based on the ~~Daily~~ daily VWAP ~~for the last Trading Day of~~ on the relevant ~~Observation Period (in the case of Combination Settlement)~~Conversion Date. For each Note surrendered for conversion, if the 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~~ thereof, shall be computed on the basis of the aggregate Daily Settlement Amounts for the ~~relevant~~ applicable Observation ~~Period~~ Period, and any fractional shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Samples: Indenture (HCI Group, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this ~~Section~~ ‎Section 14.02, ~~Section~~ ‎Section 14.03(b) and ~~Section~~ ‎Section 14.07(a), upon conversion of any Note, the Company shall ~~satisfy its Conversion Obligation by paying~~ pay or ~~delivering~~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 14.02~~ ‎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~~ ‎Section 14.02 (“Combination Settlement”), at its election, as set forth in this ~~Section~~ ‎Section 14.02. (i) All conversions for which the relevant Conversion Date occurs on or after the ~~Company’s issuance of a Notice of Redemption with respect to the Notes and prior to the related Redemption Date,~~ Final Settlement Method Election Date and all conversions for which the relevant Conversion Date occurs ~~on or~~ after ~~January 15, 2023~~the Company’s issuance of a Redemption Notice and prior to the related Redemption Date, shall be settled using the same Settlement Method. (ii) Except for (x) any conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice ~~of Redemption~~ with respect to the Notes but prior to the related Redemption ~~Date,~~ Date and for (y) any conversions for which the relevant Conversion Date occurs on or after ~~January 15~~the Final Settlement Method Election Date (each of the periods in clauses (x) and (y), ~~2023~~the “Specified Periods”), 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 ~~any conversions~~ for ~~which the relevant~~ all Conversion ~~Date occurs~~ Dates during a ~~Redemption~~ Specified Period, ~~or for which~~ as the ~~relevant Conversion Date occurs on or after January 15, 2023~~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 U.S. Trustee,~~ Company shall deliver such Settlement Notice ~~in writing~~ to converting Holders with a copy to the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs during a Specified Period (x) ~~during~~ after the date of issuance of a Redemption ~~Period~~Notice and prior to the related Redemption Date, in such Redemption Notice ~~of Redemption,~~ or (y) on or after ~~January 15, 2023~~the Final Settlement Method Election Date, no later than ~~January 15, 2023~~the Final Settlement Method Election date). If the Company does not elect a Settlement Method ~~with respect to a Conversion Date~~ prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or ~~Combination~~ Physical Settlement ~~with respect to such Conversion Date,~~ and the Company shall be deemed to have elected ~~Physical~~ 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~~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~~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 the Trustee and to Holders, in respect of any conversion of Notes following the Company’s delivery of a Settlement Notice and as to which a Settlement Method does not apply (or is not deemed to have applied) the Company may, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 for all such conversions (iv) The cash, shares of Common ~~Shares~~ Stock (and cash in lieu of any fractional shares) or a 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 ~~(or is deemed to have elected)~~ to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of 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 20 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, ~~to the converting Holder~~ in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 20 30 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 applicable Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common ~~Shares~~Stock, the Company shall notify the ~~U.S.~~ Trustee and the Conversion Agent (if other than the ~~U.S.~~ 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 ~~U.S.~~ Trustee and the Conversion Agent (if other than the ~~U.S.~~ Trustee) shall have no responsibility for any such determination. (b) Subject to ~~Section~~ ‎Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the ~~applicable~~ procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in ~~Section~~ ‎Section 14.02(h) and (ii) in the case of a ~~Definitive~~ Physical Note (1) ~~complete,~~ complete and manually sign ~~and deliver~~ an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a ~~facsimile, PDF or other electronic transmission~~ facsimile thereof) (~~a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion,~~ a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common ~~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~~ ‎Section 14.02(h). The ~~U.S.~~ Trustee (~~and~~ and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this ~~Article~~ ‎Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered ~~for conversion~~ by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and ~~has~~ not validly withdrawn such Fundamental Change Repurchase Notice with respect to such Notes in accordance with ~~Section 15.03(a)~~‎Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (i‎(b) above. Except as set forth in ~~Section~~ ‎Section 14.03(b) and ~~Section~~ ‎Section 14.07(a), the Company shall ~~pay~~ satisfy its Conversion Obligation by paying or ~~deliver~~delivering, as the case may be, the consideration due in respect of the Conversion Obligation (i) on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, ; or (ii) on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to a converting ~~Holder~~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 book-entry format through the Depositary, in the case of Global Notes, or in certificated form, in the case of Definitive Notes, in each case,~~ entitled in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the ~~U.S.~~ Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount 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 U.S. 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 ~~issuance~~ 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 ~~U.S.~~ Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in ~~Section~~ ‎Section 14.04, no adjustment shall be made for dividends on any shares of Common ~~Shares~~ Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the ~~U.S.~~ Trustee, or the Custodian at the direction of the ~~U.S.~~ Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the ~~U.S.~~ Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the ~~U.S.~~ Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the ~~full~~ Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common ~~Shares~~Stock (if 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, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately ~~following~~ succeeding the ~~corresponding Interest Payment Date;~~ date such interest is paid, (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately ~~following~~ succeeding the ~~corresponding Interest Payment Date~~date such interest is paid; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. 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 ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (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 has been 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 shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Samples: Indenture (PTC Therapeutics, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the Company shall ~~satisfy its Conversion Obligation by paying~~ pay or ~~delivering~~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 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 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02. (i) All conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Notice of Redemption with respect to the Notes and prior to the related Redemption Date, and all conversions for which the relevant Conversion Date occurs occurring (x) on or after ~~January~~ December 15, ~~2023,~~ 2028 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 ~~after the Company’s issuance of~~ during a ~~Notice of~~ Redemption ~~with respect to the Notes but prior to the related Redemption Date,~~ Period and any conversions for which the relevant Conversion Date occurs on or after ~~January~~ December 15, ~~2023~~2028, 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 ~~for which the relevant Conversion Date occurs~~ occurring (x) during a Redemption ~~Period,~~ Period or ~~for which the relevant Conversion Date occurs~~ (y) on or after ~~January~~ December 15, ~~2023~~2028, 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 U.S. 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 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~~ the related Redemption Notice (and, in the case of ~~Redemption~~a redemption of less than all outstanding Notes, in a notice simultaneously sent to all Holders of Notes not called for redemption), or (y) on or after ~~January~~ December 15, ~~2023~~2028, no later than ~~January~~ the close of business on Business Day immediately preceding December 15, ~~2023~~2028). If the Company does not timely elect a Settlement Method ~~with respect to a 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 ~~Combination~~ Physical Settlement ~~with respect to~~ for such ~~Conversion Date,~~ conversion or during such period and the Company shall be deemed to have elected ~~Physical~~ Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes to be converted shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar ~~Amount~~Amount per $1,000 principal amount of 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~~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 December 15, 2028, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 for all Conversion Dates occurring subsequent to delivery of such notice; provided, however, that no such election will affect any Settlement Method theretofore elected (or deemed to be elected) with respect to any Note; provided, further, that any such election that is made during a Redemption Period (but after the related Redemption Notice Date) will not apply to any conversions of Notes called for redemption with Conversion Dates that occur during such Redemption Period. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(k). However, the Company may nonetheless choose to execute such an amendment at its option. (iv) The cash, shares of Common ~~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 ~~(or is deemed to have elected)~~ to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect immediately after the close of business 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 20 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 20 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 ~~Shares~~Stock, the Company shall notify the ~~U.S.~~ Trustee and the Conversion Agent (if other than the ~~U.S.~~ 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 ~~U.S.~~ Trustee and the Conversion Agent (if other than the ~~U.S.~~ Trustee) shall have no responsibility for any such determination. (b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the ~~applicable~~ procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date ~~to which such Holder is not entitled~~ as set forth in Section 14.02(h) and (ii) in the case of a ~~Definitive~~ Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (~~a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion,~~ a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common ~~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 14.02(h). The ~~U.S.~~ Trustee (~~and~~ and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such ~~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 ~~15.03(a)~~15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (ib) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the second Business Day immediately following the last Trading Day of the relevant Observation Period, in the case of any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to a converting ~~Holder~~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 book-entry format through the Depositary, in the case of Global Notes, or in certificated form, in the case of Definitive Notes, in each case,~~ entitled in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the ~~U.S.~~ Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount 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 ~~U.S.~~ Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different 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 ~~issuance~~ 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 ~~U.S.~~ Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common ~~Shares~~ Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the ~~U.S.~~ Trustee, or the Custodian at the direction of the ~~U.S.~~ Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the ~~U.S.~~ Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the ~~U.S.~~ Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below, and the Company shall not adjust the Conversion Rate for any accrued and unpaid interest. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common ~~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 until the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so ~~converted~~converted (regardless of whether or not the converting Holder was the record holder on such Regular Record Date); provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a ~~Redemption~~ 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 ~~Fundamental Change Repurchase~~ Redemption Date that is after a Regular Record Date and on or prior to the ~~Business~~ second Scheduled Trading Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record as of the close of business on the Regular Record Date immediately preceding the Maturity Date 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 ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (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 Trading Day, the immediately preceding Trading Day), in the case of Physical Settlement) , or based on the Daily VWAP for the last Trading Day of the relevant Observation ~~Period (~~Period, in the case of Combination Settlement). For each Note surrendered for conversion, if the 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 shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Samples: Indenture (Five9, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the Company shall ~~satisfy its Conversion Obligation by paying~~ pay or ~~delivering~~deliver, as the case may be, to the converting Holder, in respect of each $US$1,000 principal amount of Notes being converted, cash (“Cash Settlement”), ~~Common Shares~~ADSs, together with cash, if applicable, in lieu of delivering any fractional ~~share of Common Shares~~ ADSs in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”) or a combination of cash and ~~Common Shares~~ADSs, together with cash, if applicable, in lieu of delivering any fractional ~~share of Common Shares~~ ADS in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02. (i) All conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Tax Redemption Notice ~~of Redemption~~ with respect to the Notes and prior to the related Tax Redemption ~~Date~~Date shall be settled using the same Settlement Method, and all conversions for which the relevant Conversion Date occurs on or after ~~January~~ December 15, ~~2023,~~ 2025 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 Tax Redemption Notice ~~of Redemption~~ with respect to the Notes but prior to the related Tax Redemption Date, and any conversions for which the relevant Conversion Date occurs on or after ~~January~~ December 15, ~~2023~~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 ~~any conversions for which~~ one of the ~~relevant Conversion Date occurs during a Redemption Period~~periods described in the fourth immediately succeeding set of parentheses, ~~or for which~~ as the ~~relevant Conversion Date occurs on or after January 15, 2023~~case may be), the Company elects to a Settlement Method, the Company shall deliver a written notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be)) to converting Holders, the ~~Company, through~~ Trustee and the ~~U.S.~~ Conversion Agent (if other than the Trustee~~, shall deliver such Settlement Notice in writing to converting Holders~~ ) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs (x) ~~during~~ after the date of issuance of a Tax Redemption ~~Period~~Notice with respect to the Notes and prior to the related Tax Redemption Date, in such Tax Redemption Notice ~~of Redemption,~~ or (y) on or after ~~January~~ December 15, ~~2023~~2025, no later than ~~January~~ December 15, ~~2023~~2025). If the Company does not elect a Settlement Method ~~with respect to a Conversion Date~~ prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or ~~Combination~~ Physical Settlement ~~with respect to such Conversion Date,~~ and the Company shall be deemed to have elected ~~Physical~~ Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per US$1,000 principal amount of Notes shall be equal to US$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~~Amount per US$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~~Amount per US$1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per US$1,000 principal amount of Notes shall be deemed to be $US$1,000. (iv) The cash, ~~Common Shares~~ ADSs or a combination of cash and ~~Common Shares~~ ADSs in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects ~~(or is deemed to have elected)~~ to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $US$1,000 principal amount of Notes being converted a number of ~~Common Shares~~ ADSs equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $US$1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 20 40 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, ~~to the converting Holder~~ in respect of each $US$1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 20 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 Shares~~ADS, the Company shall notify the ~~U.S.~~ Trustee and the Conversion Agent (if other than the ~~U.S.~~ 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 ~~Common Shares~~ADSs. The ~~U.S.~~ Trustee and the Conversion Agent (if other than the ~~U.S.~~ Trustee) shall have no responsibility for any such determination. (b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the ~~applicable~~ procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a ~~Definitive~~ Physical Note (1) complete, manually sign and deliver an a duly completed irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a ~~facsimile, PDF or other electronic transmission~~ facsimile thereof) (~~a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion,~~ a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ~~Common Shares~~ ADSs to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The U.S. Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03(a). If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (i) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any Common Shares are due to a converting Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of Common Shares to which such Holder shall be entitled, in book-entry format through the Depositary, in the case of Global Notes, or in certificated form, in the case of Definitive Notes, in each case, in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the U.S. Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount 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 U.S. Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different 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 issuance 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 U.S. Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any Common Shares issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the U.S. Trustee, or the Custodian at the direction of the U.S. Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the U.S. Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the U.S. Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes 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 the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date 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 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 (or is deemed to have elected) to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common Shares upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of 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 shares remaining after such computation shall be paid in cash.in

Appears in 1 contract

Samples: Indenture (JOYY Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the Company shall ~~satisfy its Conversion Obligation by paying~~ pay or ~~delivering~~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~~shares of Class C Capital Stock, together with cash, if applicable, in lieu of delivering any fractional share of ~~Common Shares~~ Class C Capital Stock in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”) or a combination of cash and ~~Common Shares~~shares of Class C Capital Stock, together with cash, if applicable, in lieu of delivering any fractional share of ~~Common Shares~~ Class C Capital Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02. (i) All conversions for which the relevant Conversion Date occurs on or after April 1, 2023, and all conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice ~~of Redemption~~ with respect to the Notes and prior to the related Redemption Date~~, and all conversions for which the relevant Conversion Date occurs on or after January 15, 2023~~, 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 ~~of Redemption~~ with respect to the Notes but prior to the related Redemption Date, and any conversions for which the relevant Conversion Date occurs on or after ~~January 15~~April 1, 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 ~~any conversions for which~~ one of the ~~relevant Conversion Date occurs during a Redemption Period~~periods described in the third immediately succeeding set of parentheses, ~~or for which~~ as the ~~relevant Conversion Date occurs on or after January 15, 2023~~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 ~~U.S.~~ Trustee, shall deliver such Settlement Notice ~~in writing~~ to converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs (x) ~~during~~ after the date of issuance of a Redemption ~~Period~~Notice with respect to the Notes and prior to the related Redemption Date, in such Redemption Notice ~~of Redemption,~~ or (y) on or after ~~January 15~~April 1, 2023, no later than ~~January 15~~April 1, 2023). If the Company does not elect a Settlement Method ~~with respect to a Conversion Date~~ prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or ~~Combination~~ Physical Settlement ~~with respect to such Conversion Date,~~ and the Company shall be deemed to have elected ~~Physical~~ 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~~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~~Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. (iv) The cash, ~~Common Shares~~ shares of Class C Capital Stock or combination of cash and ~~Common Shares~~ shares of Class C Capital Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects ~~(or is deemed to have elected)~~ to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, 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~~ shares of Class C Capital 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 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, ~~to the converting Holder~~ in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 20 consecutive 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 Shares~~Class C Capital Stock, the Company shall notify the ~~U.S.~~ Trustee and the Conversion Agent (if other than the ~~U.S.~~ 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 ~~Common Shares~~shares of Class C Capital Stock. The ~~U.S.~~ Trustee and the Conversion Agent (if other than the ~~U.S.~~ Trustee) shall have no responsibility for any such determination. (b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the ~~applicable~~ procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a ~~Definitive~~ Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a ~~facsimile, PDF or other electronic transmission~~ facsimile thereof) (~~a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion,~~ a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ~~Common Shares~~ shares of Class C Capital Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The ~~U.S.~~ Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered ~~for conversion~~ by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~15.03(a)~~15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (ib) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the ~~second~~ third Business Day immediately following the relevant Conversion Date, if the Company elects Physical ~~Settlement~~Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Company shall deliver the consideration due in respect of the Conversion Obligation on the Maturity Date), or on the ~~second~~ third Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any ~~Common Shares~~ shares of Class C Capital Stock are due to a converting Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of ~~Common Shares~~ shares of Class C Capital Stock to which such Holder shall be entitled, in certificate form or in book-entry ~~format through the Depositary, in the case of Global Notes, or in certificated form, in the case of Definitive Notes, in each case~~format, in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the ~~U.S.~~ Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount 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 ~~U.S.~~ Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different 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 ~~issuance~~ issue of any ~~Common Shares~~ shares of Class C Capital 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 ~~Common Shares~~ shares of Class C Capital Stock being issued in a name other than the Holder’s name until the ~~U.S.~~ Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any ~~Common Shares~~ shares of Class C Capital Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the ~~U.S.~~ Trustee, or the Custodian at the direction of the ~~U.S.~~ Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the ~~U.S.~~ Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the ~~U.S.~~ Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and ~~Common Shares~~shares of Class C Capital 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 the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the ~~Business Day immediately following the~~ corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date 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 ~~Common Shares~~ shares of Class C Capital 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 ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of ~~Common Shares~~ Class C Capital Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of ~~Common Shares~~ Class C Capital 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 shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Samples: Indenture (Zillow Group, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~14.02~~11.02, Section ~~14.03(b~~11.03(b) and Section ~~14.07(a~~11.07(a), upon conversion of any Note, the Company shall ~~satisfy its Conversion Obligation by paying~~ pay or ~~delivering~~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 ~~14.02~~ 11.02 (“~~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 ~~14.02~~ 11.02 (“Combination Settlement”), at its election, as set forth in this Section ~~14.02~~11.02. (i) All conversions ~~for which the relevant~~ occurring on a given Conversion Date that occurs ~~after the Company’s issuance of a Notice of Redemption with respect to the Notes and~~ prior to the ~~related Redemption Date, and all~~ Final Period Date shall be settled using the same Settlement Method. All conversions ~~for which~~ occurring after the ~~relevant Conversion~~ Final Period Date ~~occurs on or after January 15, 2023,~~ 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 Notice of Redemption with respect to the Notes but prior to the related Redemption Date, and any conversions for which the relevant Conversion Date occurs occurring on or after ~~January 15, 2023,~~ the ~~Company shall use the same Settlement Method for all conversions with the same Conversion~~ Final Period 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 for which~~ occurring prior to the ~~relevant Conversion Date occurs during a Redemption Period, or for which the relevant Conversion Date occurs on or after January 15, 2023)~~Final Period Date, the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion ~~Date (or such period, as the case may be)~~Date, the Company, through the ~~U.S. Trustee~~Conversion Agent, shall deliver such Settlement Notice ~~in writing~~ to the Trustee, the Conversion Agent (if other than the Trustee) and converting Holders no later than the ~~close of business on the~~ second Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions ~~for which the relevant Conversion Date occurs (x) during a Redemption Period, in such Notice of Redemption, or (y)~~ occurring on or after ~~January 15, 2023~~the Final Period Date, no later than ~~January 15, 2023~~the Final Period Date). If the Company does not elect a Settlement Method ~~with respect to a Conversion Date~~ prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the ~~right~~ right, with respect to a particular Conversion Date, or the period following the Final Period Date, as applicable, to elect Cash Settlement or ~~Combination~~ Stock Settlement ~~with respect to such Conversion Date,~~ and the Company shall be ~~deemed~~ deemed, with respect to a particular Conversion Date, or the period following the Final Period Date, as applicable, to have elected ~~Physical~~ Combination Settlement in respect of its Conversion ~~Obligation~~Obligation with the Specified Dollar Amount 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. If the Company delivers a Settlement ~~Notice~~ Notice, with respect to a particular Conversion Date, or the period following the Final Period Date, as applicable, electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar ~~Amount~~Amount in such Settlement Notice, the Specified Dollar ~~Amount~~ Amount, with respect to a particular Conversion Date, or the period following the Final Period Date, as applicable, shall be deemed to be $1,000. (iv) The Company may, prior to the Final Period Date, at its option, irrevocably elect a Combination Settlement with a particular Specified Dollar Amount for all conversions subsequent to its notice by notice of such election to all Holders of Notes. (v) 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 ~~(or is deemed to have elected)~~ 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 20 50 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,~~ deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 20 50 consecutive Trading Days during the 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 ~~share of Common Shares~~share, the Company shall notify the ~~U.S.~~ Trustee and the Conversion Agent (if other than the ~~U.S.~~ 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 ~~U.S.~~ Trustee and the Conversion Agent ~~(if other than the U.S. Trustee)~~ shall have no responsibility for any such determination. (b) Subject to Section ~~14.02(e~~11.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the ~~applicable~~ procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~14.02(h~~11.02(h) and (ii) in the case of a ~~Definitive~~ Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a ~~facsimile, PDF or other electronic transmission~~ facsimile thereof) (~~a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion,~~ a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common ~~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 14.02(h). The U.S. Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03(a). If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (i) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any Common Shares are due to a converting Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of Common Shares to which such Holder shall be entitled, in book-entry format through the Depositary, in the case of Global Notes, or in certificated form, in the case of Definitive Notes, in each case, in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the U.S. Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount 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 U.S. Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different 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 issuance 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 U.S. Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any Common Shares issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the U.S. Trustee, or the Custodian at the direction of the U.S. Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the U.S. Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the U.S. Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes 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 the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date 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 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 (or is deemed to have elected) to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common Shares upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of 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 shares remaining after such computation shall be paid in cash.funds

Appears in 1 contract

Samples: First Supplemental Indenture (Verint Systems Inc)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this ~~Section~~ ‎Section 14.02, ~~Section~~ ‎Section 14.03(b) and ~~Section~~ ‎Section 14.07(a), upon conversion of any Note, the Company shall ~~satisfy its Conversion Obligation by paying~~ pay or ~~delivering~~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~~ ‎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~~ ‎Section 14.02 (“Combination Settlement”), at its election, as set forth in this ~~Section~~ ‎Section 14.02. (i) All conversions for which the relevant Conversion Date occurs ~~after the Company’s issuance of a Notice of Redemption with respect to the Notes and prior to the related Redemption Date, and all conversions for which the relevant Conversion Date occurs~~ on or after ~~January 15~~March 3, ~~2023,~~ 2020 shall be settled using the same Settlement Method. (ii) ~~Except for~~ For any conversions for which the relevant Conversion Date occurs ~~after the Company’s issuance of a Notice of Redemption with respect to the Notes but~~ prior to ~~the related Redemption Date~~March 3, ~~and any conversions for which the relevant Conversion Date occurs on or after January 15, 2023~~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 ~~any conversions for which~~ the ~~relevant Conversion Date occurs during a Redemption Period~~period described in the fourth immediately succeeding set of parentheses, ~~or for which~~ as the ~~relevant Conversion Date occurs on or after January 15, 2023~~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 U.S. Trustee,~~ Company shall deliver such Settlement Notice ~~in writing~~ 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 Scheduled Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs ~~(x) during a Redemption Period, in such Notice of Redemption, or (y)~~ on or after ~~January 15~~March 3, ~~2023~~2020, no later than ~~January 15~~the close of business on the Business Day immediately preceding March 3, ~~2023~~2020). If the Company does not elect a Settlement Method ~~with respect to~~ 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 ~~Combination~~ Physical Settlement with respect to such Conversion ~~Date,~~ Date and the Company shall be deemed to have elected ~~Physical~~ 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~~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~~Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. (iv) The cash, shares of Common ~~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 ~~(or is deemed to have elected)~~ to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of 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 20 60 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, ~~to the converting Holder~~ in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 20 60 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 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 ~~Shares~~Stock, the Company shall notify the ~~U.S.~~ Trustee and the Conversion Agent (if other than the ~~U.S.~~ 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 ~~U.S.~~ Trustee and the Conversion Agent (if other than the ~~U.S.~~ Trustee) shall have no responsibility for any such determination. (b) Subject to ~~Section~~ ‎Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the ~~applicable~~ procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in ~~Section~~ ‎Section 14.02(h) and (ii) in the case of a ~~Definitive~~ Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a ~~facsimile, PDF or other electronic transmission~~ facsimile thereof) (~~a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion,~~ a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common ~~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~~ ‎Section 14.02(h). The ~~U.S.~~ Trustee (~~and~~ and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this ~~Article~~ ‎Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered ~~for conversion~~ by a Holder thereof if such ~~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 15.03(a)~~‎Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (i‎(b) above. Except as set forth in ~~Section~~ ‎Section 14.03(b) and ~~Section~~ ‎Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the ~~second~~ third Business Day immediately following the relevant Conversion Date, if the Company elects Physical ~~Settlement~~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 a converting ~~Holder~~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 book-entry format through the Depositary, in the case of Global Notes, or in certificated form, in the case of Definitive Notes, in each case,~~ entitled in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the ~~U.S.~~ Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount 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 ~~U.S.~~ Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different 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 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 ~~U.S.~~ 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~~ ‎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~~ ‎Article 14. (g) Upon the conversion of an interest in a Global Note, the ~~U.S.~~ Trustee, or the Custodian at the direction of the ~~U.S.~~ Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the ~~U.S.~~ Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the ~~U.S.~~ 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. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than ~~cancelled~~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 the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a ~~Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a~~ Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (43) to the extent of any Defaulted Amounts, if any Defaulted Amounts ~~exists~~ exist at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record at the close of business 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 ~~in cash~~ 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 ~~(or is deemed to have elected)~~ 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 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 shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Samples: Indenture (Interactive Intelligence Group, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the Company ~~shall satisfy~~ shall, at its ~~Conversion Obligation by paying~~ election, pay or ~~delivering~~deliver, as the case may be, to the converting Holder, in ~~respect~~ full satisfaction of ~~each $1,000 principal amount of Notes being converted~~its Conversion Obligation, cash (“Cash Settlement”), shares of the Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with ~~subsection (j~~Section 14.02(i) ~~of this Section 14.02~~ (“Physical Settlement”) ), or a combination of cash and shares of the Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with ~~subsection (j~~Section 14.02(i) ~~of this Section 14.02~~ (“Combination Settlement”)~~, at its election~~, as set forth in this Section 14.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~the Company’s issuance of a Notice of Redemption with respect to the Notes and prior to the related Redemption Date~~August 1, 2026 and all conversions for which the ~~relevant~~ Conversion Date occurs on or after ~~January 15, 2023,~~ the Redemption Notice Date and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date shall be settled using the same Settlement ~~Method.~~ Method (~~ii)~~ including the same relative proportion of cash and/or shares of the Common Stock). Except for ~~any conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Notice of Redemption with respect to the Notes but prior to the related Redemption Date, and~~ any conversions for which the relevant Conversion Date occurs on or after ~~January 15~~August 1, ~~2023~~2026 and all conversions for which the Conversion Date occurs on or after the Redemption Notice Date and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date, the Company shall use the same Settlement Method (including the same relative proportion of cash and/or shares of the Common Stock) for all conversions ~~with~~ that occur 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~~ii) ~~If, in respect of any Conversion Date (or any conversions for which~~ If the ~~relevant Conversion Date occurs during~~ Company elects a ~~Redemption Period, or for which the relevant Conversion Date occurs on or after January 15, 2023)~~Settlement Method, the Company ~~elects~~ shall deliver notice to ~~deliver a notice (~~Holders so converting 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 U.S. Trustee, shall deliver such Settlement Notice in writing to converting Holders~~ Company has selected no later than the close of business on the 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 August 1, 2026, no later than August 1, 2026 or (xii) ~~during~~ in the case of any conversions occurring on or after the date of a Notice of Redemption ~~Period~~and prior to the close of business on the second Scheduled Trading Day immediately preceding the Redemption Date, in such Notice of Redemption~~, or (y) on or after January 15, 2023, no later than January 15, 2023~~). If the Company does not timely elect a Settlement ~~Method with respect to a Conversion Date prior to the deadline set forth in the immediately preceding sentence~~Method, the Company shall no longer have the right to elect Cash Settlement or ~~Combination~~ Physical Settlement with respect to ~~such~~ that Conversion ~~Date,~~ Date and the Company shall be deemed to have elected ~~Physical~~ Combination Settlement in respect of its Conversion Obligation~~. Such Settlement Notice shall specify the relevant Settlement Method~~ , and ~~in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate~~ the Specified Dollar ~~Amount~~Amount per $1,000 principal amount of Notes shall be equal to $1,000. If the Company ~~delivers a Settlement Notice electing~~ has timely elected Combination Settlement in respect of ~~its Conversion Obligation~~ any conversion but does not ~~indicate a~~ timely notify the Conversion Agent of the Specified Dollar ~~Amount~~Amount per $1,000 principal amount of Notes, the Specified Dollar Amount shall be deemed to be $1,000. (iviii) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock payable or deliverable by the Company in respect of any conversion of Notes (the “Settlement Amount”) shall be computed by the Company as follows: (A) if the Company elects ~~(or is deemed to have elected)~~ to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of 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 20 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, to the converting Holder in respect of each $1,000 principal amount of Notes being ~~converted,~~ converted a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 20 consecutive VWAP Trading Days during the related Observation ~~Period.~~ Period (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the 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 plus cash ~~payable~~ in lieu of ~~delivering~~ any fractional share of Common Shares, the Company shall notify the U.S. Trustee and the Conversion Agent (if other than the U.S. 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 Common Shares. The U.S. Trustee and the Conversion Agent (if other than the U.S. Trustee) shall have no responsibility for any such determination. (b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a Definitive Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any Common Shares to be delivered Stock issuable upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The U.S. Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03(a). If more than one Note shall be surrendered for conversion at any one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted ~~thereby~~hereby) so surrendered. (iv) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last VWAP Trading Day of the related Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and, if applicable, the amount of cash payable in lieu of any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and, if applicable, the amount of cash payable in lieu of fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (i) To convert a beneficial interest in a Global Note (which conversion is irrevocable), the holder of such beneficial interest must: (A) comply with the Applicable Procedures; (B) if required, pay funds equal to all documentary, stamp or similar issue or transfer tax owed as set forth in Section 14.02(d) and Section 14.02(e); and (C) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(g); and (ii) To convert a Certificated Note, the Holder must: (A) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile thereof) (a “Notice of Conversion”) and such Note to the Conversion Agent; (B) if required, furnish appropriate endorsements and transfer documents; (C) if required, pay funds equal to all documentary, stamp or similar issue or transfer tax owed as set forth in Section 14.02(d) and Section 14.02(e); and (D) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(g). The Trustee (and if different, the Conversion Agent), upon receiving notice of any conversion, shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion or, if notice on such date is not feasible given the nature of the conversion, promptly thereafter. If a Holder has already delivered a Fundamental Change Purchase Notice with respect to a Note, such Holder may not surrender such Note for conversion until such Holder has validly withdrawn such Fundamental Change Purchase Notice (or, in the case of a Global Note, has complied with the Applicable Procedures with respect to such a withdrawal) in accordance with the terms of Section 15.03. If a Holder has already delivered a Fundamental Change Purchase Notice, such Holder’s right to withdraw such notice and convert the Notes that are subject to repurchase will terminate at the close of business on the Business Day immediately preceding the relevant Fundamental Change Purchase Date. If the Company has designated a Redemption Date pursuant to Section 16.02, a Holder that complies with the requirements for conversion set forth in this Section 14.02(b) shall be deemed to have delivered a notice of its election not to have its Notes so redeemed. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in ~~subsection (i) above~~Section 14.02(b). ~~Except as set forth in~~ Subject to the next paragraph and the provisions of Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the ~~consideration~~ Settlement Amount due in respect of the Conversion Obligation on no later than: (i) the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement~~, or on~~ ; or (ii) the second Business Day immediately following the last VWAP Trading Day of the relevant Observation Period, in if the ~~case of any other~~ Company elects Cash Settlement ~~Method~~or if the Company elects or is deemed to elect Combination Settlement. If any shares of Common ~~Shares~~ Stock are due to a converting ~~Holder~~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, as the case may be, for the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be ~~entitled, in book-entry format through the Depositary, in the case of Global Notes, or in certificated form, in the case of Definitive Notes, in each case,~~ entitled in satisfaction of the Company’s Conversion Obligation. (d) In case any Certificated Note shall be surrendered for partial conversion, in $1,000 principal amount or an integral multiple of $1,000 in excess thereof, the Company shall execute and the ~~U.S.~~ Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount 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 ~~U.S.~~ Trustee, with payment of a sum sufficient to cover any ~~documentary, stamp or similar issue or~~ transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different 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 issuance of any shares of Common ~~Shares~~ Stock upon ~~conversion~~conversion of such Note, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common ~~Shares~~ Stock being issued in a name other than the Holder’s name until the ~~U.S.~~ Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) ~~Except as provided in Section 14.04, no adjustment shall be made for dividends on any Common Shares issued upon the conversion of any Note as provided in this Article 14. (g)~~ Upon the conversion of an interest in a Global Note, the ~~U.S.~~ Trustee, or the Custodian of the Global Note at the direction of the ~~U.S.~~ Trustee, shall make a notation ~~on such Global Note~~ in the books and records of the Trustee and Depositary as to the reduction in the principal amount represented thereby. The Company shall notify the ~~U.S.~~ Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the ~~U.S.~~ Trustee. (hg) Upon ~~conversion~~conversion of a Note, a the converting Holder shall not receive any separate cash payment ~~for~~ representing accrued and unpaid interest, if any, except as set forth in the paragraph below. The Company’s ~~settlement~~ payment or delivery, as the case may be, of the ~~full Conversion Obligation~~ Settlement Amount upon conversion of any Note shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than ~~cancelled~~canceled, extinguished or ~~forfeited~~forfeited (other than in the circumstances described under Section 14.01(b)(v)). 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~~immediately preceding paragraph, 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 immediately following Interest Payment Date, Holders of such Notes ~~as of~~ at the close of business on such Regular Record Date ~~will~~ shall receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so ~~converted~~converted on the corresponding Interest Payment Date (regardless of whether the converting Holder was the Holder of record on the corresponding Regular Record Date); provided that no such payment ~~shall~~ need be ~~required~~ made: (1i) if the Notes are surrendered for ~~conversions~~ conversion following the Regular Record Date immediately preceding the Maturity Date; ; (2ii) if the Company has specified a ~~Redemption~~ Fundamental Change Purchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; ; (3iii) if the Company has specified a ~~Fundamental Change Repurchase~~ Redemption Date in accordance with Article 16 that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or or (4iv) to the extent of any ~~Defaulted Amounts~~overdue interest, if any ~~Defaulted Amounts~~ overdue interest exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date and any Fundamental Change Purchase Date as described in clause (ii) above, shall receive and retain the full interest payment due on the Maturity Date ~~in cash~~ or other applicable Interest Payment Date regardless of whether their Notes have been converted following such Regular Record Date. (ih) The Person in whose name ~~the~~ any shares of Common ~~Shares~~ Stock shall be issuable upon conversion is registered shall be treated as ~~a stockholder~~ the holder of record of such shares as of the close of business on (i) the relevant Conversion Date (if the Company elects Physical Settlement or (~~or is deemed to have elected~~ii) ~~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 ~~satisfy the related Conversion Obligation by~~ elect Combination Settlement~~), as the case may be~~. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion; provided that (a) the converting Holder shall have the right to receive the Settlement Amount due upon conversion and (b) in the case of a conversion between a Regular Record Date and the corresponding Interest Payment Date, the Holder of record as of the close of business on such Regular Record Date shall have the right to receive the interest payable on such Interest Payment Date, in accordance with Section 14.02(g). (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 in an amount based on (i) the Daily VWAP ~~for~~ on the relevant Conversion Date if the Company elects Physical Settlement or (~~in the case of Physical Settlement~~ii) ~~or based on~~ the Daily VWAP ~~for~~ on the last VWAP Trading Day of the relevant Observation Period ~~(in~~ if the ~~case of~~ Company elects or is deemed to elect Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to elect) 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~~ and, if applicable, any fractional ~~shares~~ share remaining after such computation shall be paid in cash.

Appears in 1 contract

Samples: Indenture (United States Steel Corp)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the Company shall ~~satisfy its Conversion Obligation by paying~~ pay or ~~delivering~~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 ~~14.02~~ 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 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02. (i) All conversions for which the relevant Conversion Date occurs on or after the ~~Company’s issuance of a Notice of Redemption with respect to the Notes and prior to the related Redemption Date,~~ Final Settlement Method Election Date and all conversions for which the relevant Conversion Date occurs ~~on or~~ after ~~January 15, 2023~~the Company’s issuance of a Redemption Notice and prior to the related Redemption Date, shall be settled using the same Settlement Method. (ii) Except for (x) any conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice ~~of Redemption~~ with respect to the Notes but prior to the related Redemption ~~Date,~~ Date and for (y) any conversions for which the relevant Conversion Date occurs on or after ~~January 15~~the Final Settlement Method Election Date (each of the periods in clauses (x) and (y), ~~2023~~the “Specified Periods”), 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 ~~any conversions~~ for ~~which the relevant~~ all Conversion ~~Date occurs~~ Dates during a ~~Redemption~~ Specified Period, ~~or for which~~ as the ~~relevant Conversion Date occurs on or after January 15, 2023~~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 U.S. Trustee,~~ Company shall deliver such Settlement Notice ~~in writing~~ to converting Holders with a copy to the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs during a Specified Period (x) ~~during~~ after the date of issuance of a Redemption ~~Period~~Notice and prior to the related Redemption Date, in such Redemption Notice ~~of Redemption,~~ or (y) on or after ~~January 15, 2023~~the Final Settlement Method Election Date, no later than ~~January 15, 2023~~the Final Settlement Method Election date). If the Company does not elect a Settlement Method ~~with respect to a Conversion Date~~ prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or ~~Combination~~ Physical Settlement ~~with respect to such Conversion Date,~~ and the Company shall be deemed to have elected ~~Physical~~ 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~~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~~Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. (iv) The cash, shares of Common ~~Shares~~ Stock (and cash in lieu of any fractional shares) or a 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 ~~(or is deemed to have elected)~~ to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of 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 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, ~~to the converting Holder~~ in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 20 consecutive 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 applicable Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common ~~Shares~~Stock, the Company shall notify the ~~U.S.~~ Trustee and the Conversion Agent (if other than the ~~U.S.~~ 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 ~~U.S.~~ Trustee and the Conversion Agent (if other than the ~~U.S.~~ Trustee) shall have no responsibility for any such determination. (b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the ~~applicable~~ procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a ~~Definitive~~ Physical Note (1) ~~complete,~~ complete and manually sign ~~and deliver~~ an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a ~~facsimile, PDF or other electronic transmission~~ facsimile thereof) (~~a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion,~~ a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common ~~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 14.02(h). The ~~U.S.~~ Trustee (~~and~~ and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered ~~for conversion~~ by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and ~~has~~ not validly withdrawn such Fundamental Change Repurchase Notice with respect to such Notes in accordance with Section ~~15.03(a)~~15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (ib) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall ~~pay~~ satisfy its Conversion Obligations by paying or ~~deliver~~delivering, as the case may be, the consideration due in respect of the Conversion Obligation (i) on the ~~second~~ third Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, ; or (ii) 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 ~~Holder~~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 book-entry format through the Depositary, in the case of Global Notes, or in certificated form, in the case of Definitive Notes, in each case,~~ entitled in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the ~~U.S.~~ Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount 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 U.S. 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 ~~issuance~~ 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 ~~U.S.~~ Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common ~~Shares~~ Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the ~~U.S.~~ Trustee, or the Custodian at the direction of the ~~U.S.~~ Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the ~~U.S.~~ Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the ~~U.S.~~ Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the ~~full~~ Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes 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 the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately ~~following~~ succeeding the ~~corresponding Interest Payment Date;~~ date such interest is paid, (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately ~~following~~ succeeding the ~~corresponding Interest Payment Date~~date such interest is paid; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. 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 ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (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 has been 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 shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Samples: Indenture (PTC Therapeutics, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) . (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the Company ~~shall satisfy~~ shall, at its ~~Conversion Obligation by paying~~ election, pay or ~~delivering~~deliver, as the case may be, to the converting Holder, in ~~respect~~ full satisfaction of ~~each $1,000 principal amount of Notes being converted~~its Conversion Obligation, cash (“Cash Settlement”), shares of the Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with ~~subsection (j~~Section 14.02(i) ~~of this Section 14.02~~ (“Physical Settlement”) ), or a combination of cash and shares of the Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with ~~subsection (j~~Section 14.02(i) ~~of this Section 14.02~~ (“Combination Settlement”)~~, at its election~~, as set forth in this Section 14.02. (i) All conversions for which the relevant Conversion Date occurs ~~after the Company’s issuance of a Notice of Redemption with respect to the Notes and prior to the related Redemption Date, and all conversions for which the relevant Conversion Date occurs~~ on or after ~~January 15~~November 1, ~~2023,~~ 2023 shall be settled using the same Settlement ~~Method.~~ Method (~~ii)~~ including the same relative proportion of cash and/or shares of the Common Stock). Except for ~~any conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Notice of Redemption with respect to the Notes but prior to the related Redemption Date, and~~ any conversions for which the relevant Conversion Date occurs on or after ~~January 15~~November 1, 2023, the Company shall use the same Settlement Method (including the same relative proportion of cash and/or shares of the Common Stock) for all conversions with the same Conversion Date, but the 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 any conversions for which~~ If the ~~relevant Conversion Date occurs during~~ Company elects a ~~Redemption Period, or for which the relevant Conversion Date occurs on or after January 15, 2023)~~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 U.S. Trustee, shall deliver such Settlement Notice in writing to converting Holders~~ Company has selected no later than the close of business on the Trading Day immediately following the ~~relevant~~ related Conversion Date (~~or,~~ or in the case of any conversions for which the relevant Conversion Date occurs ~~(x) during a Redemption Period, in such Notice of Redemption, or (y)~~ on or after ~~January 15~~November 1, 2023, no later than ~~January 15~~November 1, 2023). If the Company does not timely elect a Settlement ~~Method with respect to a Conversion Date prior to the deadline set forth in the immediately preceding sentence~~Method, the Company shall no longer have the right to elect Cash Settlement or ~~Combination~~ Physical Settlement with respect to ~~such~~ that Conversion ~~Date,~~ Date and the Company shall be deemed to have elected ~~Physical~~ Combination Settlement in respect of its Conversion Obligation~~. Such Settlement Notice shall specify the relevant Settlement Method~~ , and ~~in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate~~ the Specified Dollar ~~Amount~~Amount per $1,000 principal amount of Notes shall be equal to $1,000. If the Company ~~delivers a Settlement Notice electing~~ has timely elected Combination Settlement in respect of ~~its Conversion Obligation~~ any conversion but does not ~~indicate a~~ timely notify the Conversion Agent of the Specified Dollar ~~Amount~~Amount per $1,000 principal amount of Notes, the Specified Dollar Amount shall be deemed to be $1,000. (iviii) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock payable or deliverable by the Company in respect of any conversion of Notes (the “Settlement Amount”) shall be computed by the Company as follows: (A) if the Company elects ~~(or is deemed to have elected)~~ to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of 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 20 50 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, to the converting Holder in respect of each $1,000 principal amount of Notes being ~~converted,~~ converted a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 20 50 consecutive VWAP Trading Days during the related Observation ~~Period.~~ Period (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the 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 plus cash ~~payable~~ in lieu of ~~delivering~~ any fractional share of Common Shares, the Company shall notify the U.S. Trustee and the Conversion Agent (if other than the U.S. 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 Common Shares. The U.S. Trustee and the Conversion Agent (if other than the U.S. Trustee) shall have no responsibility for any such determination. (b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a Definitive Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any Common Shares to be delivered Stock issuable upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The U.S. Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03(a). If more than one Note shall be surrendered for conversion at any one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted ~~thereby~~hereby) so surrendered. (civ) ~~A Note~~ The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (i) above. Except as set forth in Section 14.03(b) and Section 14.07(a), determined by the Company ~~shall pay~~ promptly following the last VWAP Trading Day of the related Observation Period. Promptly after such determination of the Daily Settlement Amounts or ~~deliver~~the Daily Conversion Values, 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~~and, if applicable, the ~~Company elects Physical Settlement, or on the second Business Day immediately following the last Trading Day~~ amount of ~~the Observation Period,~~ cash payable in ~~the case~~ lieu of any ~~other Settlement Method. If any~~ fractional share of Common ~~Shares are due to a converting Holder~~Stock, the Company shall ~~issue or cause to be issued,~~ notify the Trustee and ~~deliver (if applicable) to~~ the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or ~~to such Holder~~the Daily Conversion Values, ~~or such Holder’s nominee or nominees~~as the case may be, and, if applicable, the ~~full number~~ amount of cash payable in lieu of fractional shares of Common ~~Shares to which~~ Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such Holder shall be entitled, in book-entry format through the Depositary, in the case of Global Notes, or in certificated form, in the case of Definitive Notes, in each case, in satisfaction of the Company’s Conversion Obligationdetermination. (di) ~~In case any~~ To convert a beneficial interest in a Global Note ~~shall be surrendered for partial conversion~~(which conversion is irrevocable), the ~~Company shall execute and~~ holder of such beneficial interest must: (A) comply with the ~~U.S. Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount~~ Applicable Procedures; (B) if required, pay funds 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 U.S. Trustee, with payment of a sum sufficient to cover any all documentary, stamp or similar issue or transfer tax ~~or similar governmental charge required by law or that may be imposed~~ owed as set forth in ~~connection therewith~~ Section 14.02(d) and Section 14.02(e); and (C) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(g); and (ii) To convert a ~~result of the name of~~ Certificated Note, the Holder ~~of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.~~must: (eA) If complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a ~~Holder submits~~ facsimile thereof) (a “Notice of Conversion”) and such Note ~~for conversion~~to the Conversion Agent; (B) if required, ~~the Company shall~~ furnish appropriate endorsements and transfer documents; (C) if required, pay ~~any~~ funds equal to all documentary, stamp or similar issue or transfer tax ~~due~~ owed as set forth in Section 14.02(d) and Section 14.02(e); and (D) if required, pay funds equal to any interest payable on the ~~issuance~~ next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(g). The Trustee (and if different, the Conversion Agent) shall notify the Company of any ~~Common Shares upon~~ conversion pursuant to this Article 14 on the Conversion Date for such conversion or, if notice on such date is not feasible given the nature of the conversion, ~~unless the tax is due because the~~ promptly thereafter. If a Holder ~~requests~~ has already delivered a Fundamental Change Repurchase Notice with respect to a Note, such ~~shares to be issued in a name other than the Holder’s name~~Holder may not surrender such Note for conversion until such Holder has validly withdrawn such Fundamental Change Repurchase Notice (or, in ~~which~~ the case of a Global Note, has complied with the ~~Holder shall pay that tax. The Conversion Agent may refuse~~ Applicable Procedures with respect to ~~deliver the certificates representing the Common Shares being issued in~~ such a ~~name other than the Holder’s name until the U.S. Trustee receives a sum sufficient to pay any tax that is due by such Holder~~ withdrawal) in accordance with the ~~immediately preceding sentence. (f) Except as provided in~~ terms of Section 14.04, no adjustment shall be made for dividends on any Common Shares issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the U.S. Trustee, or the Custodian at the direction of the U.S. Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby15.03. ~~The Company shall notify the U.S. Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the U.S. Trustee. (h) Upon conversion,~~ If a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes 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 the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has ~~specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified~~ already delivered a Fundamental Change Repurchase ~~Date~~ Notice, such Holder’s right to withdraw such notice and convert the Notes that ~~is after a Regular Record Date and on or prior~~ are subject to ~~the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists~~ repurchase will terminate 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 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 (or is deemed to have elected) to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading~~ Business Day of immediately preceding the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversionFundamental Change Repurchase Date. (j) The Company shall not issue any fractional share of Common Shares upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of 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 shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Samples: Indenture (Conmed Corp)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the Company shall ~~satisfy its Conversion Obligation by paying~~ pay or ~~delivering~~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~~shares of Class C Capital Stock, together with cash, if applicable, in lieu of delivering any fractional share of ~~Common Shares~~ Class C Capital Stock in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”) or a combination of cash and ~~Common Shares~~shares of Class C Capital Stock, together with cash, if applicable, in lieu of delivering any fractional share of ~~Common Shares~~ Class C Capital Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02. (i) All conversions for which the relevant Conversion Date occurs on or after March 1, 2024, and all conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice ~~of Redemption~~ with respect to the Notes and prior to the related Redemption Date~~, and all conversions for which the relevant Conversion Date occurs on or after January 15, 2023~~, 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 ~~of Redemption~~ with respect to the Notes but prior to the related Redemption Date, and any conversions for which the relevant Conversion Date occurs on or after ~~January 15~~March 1, ~~2023~~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 ~~any conversions for which~~ one of the ~~relevant Conversion Date occurs during a Redemption Period~~periods described in the third immediately succeeding set of parentheses, ~~or for which~~ as the ~~relevant Conversion Date occurs on or after January 15, 2023~~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 ~~U.S.~~ Trustee, shall deliver such Settlement Notice ~~in writing~~ to converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs (x) ~~during~~ after the date of issuance of a Redemption ~~Period~~Notice with respect to the Notes and prior to the related Redemption Date, in such Redemption Notice ~~of Redemption,~~ or (y) on or after ~~January 15~~March 1, ~~2023~~2024, no later than ~~January 15~~March 1, ~~2023~~2024). If the Company does not elect a Settlement Method ~~with respect to a Conversion Date~~ prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or ~~Combination~~ Physical Settlement ~~with respect to such Conversion Date,~~ and the Company shall be deemed to have elected ~~Physical~~ 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~~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~~Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. (iv) The cash, ~~Common Shares~~ shares of Class C Capital Stock or combination of cash and ~~Common Shares~~ shares of Class C Capital Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects ~~(or is deemed to have elected)~~ to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, 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~~ shares of Class C Capital 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 20 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 20 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 Shares~~Class C Capital Stock, the Company shall notify the ~~U.S.~~ Trustee and the Conversion Agent (if other than the ~~U.S.~~ 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 ~~Common Shares~~shares of Class C Capital Stock. The ~~U.S.~~ Trustee and the Conversion Agent (if other than the ~~U.S.~~ Trustee) shall have no responsibility for any such determination. (b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the ~~applicable~~ procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a ~~Definitive~~ Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a ~~facsimile, PDF or other electronic transmission~~ facsimile thereof) (~~a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion,~~ a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ~~Common Shares~~ shares of Class C Capital Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The ~~U.S.~~ Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered ~~for conversion~~ by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~15.03(a)~~15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (ib) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any Common Shares are due to a converting Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of Common Shares to which such Holder shall be entitled, in book-entry format through the Depositary, in the case of Global Notes, or in certificated form, in the case of Definitive Notes, in each case, in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the U.S. Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount 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 U.S. Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different 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 issuance 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 U.S. Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any Common Shares issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the U.S. Trustee, or the Custodian at the direction of the U.S. Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the U.S. Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the U.S. Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes 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 the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date 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 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 (or is deemed to have elected) to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common Shares upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of 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 shares remaining after such computation shall be paid in cash.and

Appears in 1 contract

Samples: Indenture (Zillow Group, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the Company shall ~~satisfy its Conversion Obligation by paying~~ pay or ~~delivering~~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 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 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02. (i) All conversions for which the relevant Conversion Date occurs ~~after the Company’s issuance of a Notice of Redemption with respect to the Notes and prior to the related Redemption Date, and all conversions for which the relevant Conversion Date occurs~~ on or after ~~January 15~~March 1, ~~2023,~~ 2022 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 Notice of Redemption with respect to the Notes but prior to the related Redemption Date, and any conversions for which the relevant Conversion Date occurs~~ on or after ~~January 15~~March 1, ~~2023~~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 ~~any conversions for which~~ the ~~relevant Conversion Date occurs during a Redemption Period~~period described in the fourth immediately succeeding set of parentheses, ~~or for which~~ as the ~~relevant Conversion Date occurs on or after January 15, 2023~~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 U.S. Trustee,~~ Company shall deliver such Settlement Notice ~~in writing~~ to the Trustee, the Conversion Agent (if other than the Trustee) and converting Holders no later than the close of business on the second Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs ~~(x) during a Redemption Period, in such Notice of Redemption, or (y)~~ on or after ~~January 15~~March 1, ~~2023~~2022, no later than ~~January 15~~March 1, ~~2023~~2022). If the Company does not elect a Settlement Method ~~with respect to a Conversion Date~~ prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or ~~Combination~~ Physical Settlement ~~with respect to such Conversion Date,~~ and the Company shall be deemed to have elected ~~Physical~~ 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~~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~~Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. Notwithstanding anything to the contrary in this Section 14.02(a), the Company shall be permitted to elect Physical Settlement in any Certain Distributions Notification as set forth in Section 14.01(b)(iii) and any such election shall be applicable to conversions with Conversion Dates that occur from the date of the Certain Distributions Notification until the related Certain Distributions Conversion Period End Date. (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 ~~(or is deemed to have elected)~~ to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of 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 20 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, ~~to the converting Holder~~ in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 20 45 consecutive Trading Days during the 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 ~~Shares~~Stock, the Company shall notify the ~~U.S.~~ Trustee and the Conversion Agent (if other than the ~~U.S.~~ 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 ~~U.S.~~ Trustee and the Conversion Agent (if other than the ~~U.S.~~ Trustee) shall have no responsibility for any such determination. (b) ~~Subject to Section 14.02(e), before~~ Before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the ~~applicable~~ procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled and, if required, pay all transfer or similar taxes, if any, as set forth in Section 14.02(h) and (ii) in the case of a ~~Definitive~~ Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a ~~facsimile, PDF or other electronic transmission~~ facsimile thereof) (~~a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion,~~ a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common ~~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 the interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h)) and (5) if required, pay all transfer or similar taxes. The ~~U.S.~~ Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered ~~for conversion~~ by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~15.03(a)~~15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (ib) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the ~~second~~ third Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the ~~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 ~~Holder~~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 book-entry format through the Depositary, in the case of Global Notes, or in certificated form, in the case of Definitive Notes, in each case,~~ entitled in satisfaction of the Company’s Conversion Obligation. (d) In case any Physical Note shall be surrendered for partial conversion, the Company shall execute and the ~~U.S.~~ Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount 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 ~~U.S.~~ Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different 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 ~~issuance~~ 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 Common Shares being issued in a name other than the Holder’s name until the U.S. Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common ~~Shares~~ Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the ~~U.S.~~ Trustee, or the Custodian at the direction of the ~~U.S.~~ Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the ~~U.S.~~ Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the ~~U.S.~~ Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes 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~~ shall receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of such interest payable on the Notes so ~~converted~~converted on the corresponding Interest Payment Date (regardless of whether the Holder was the Holder of record on the corresponding Regular Record Date); provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a ~~Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a~~ Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date, in respect of Notes converted after the Close of Business on such Regular Record Date and on or prior to the Open of Business on such Interest Payment Date; or (43) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. 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 subclause (2) above shall receive the full interest payment due on the Maturity Date ~~in cash~~ or other applicable Interest Payment Date 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 stockholder~~ become the holder of record of such shares as of the close of business on the relevant Conversion Date (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (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 shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Samples: First Supplemental Indenture (Amag Pharmaceuticals Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying or 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 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 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02. (i) All conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Notice of Redemption with respect to the Notes and prior to the related Redemption ~~Date~~Date shall be settled using the same settlement method, and all conversions for which the relevant Conversion Date occurs on or after ~~January~~ November 15, ~~2023~~2026, 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 Notice of Redemption with respect to the Notes but prior to the related Redemption Date, and any conversions for which the relevant Conversion Date occurs on or after ~~January~~ November 15, ~~2023~~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 any conversions for which the relevant Conversion Date occurs ~~during~~ after the Company’s issuance of a Notice of Redemption ~~Period~~with respect to the Notes and prior to the related Redemption Date, or for which the relevant Conversion Date occurs on or after ~~January~~ November 15, ~~2023~~2026), 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 ~~U.S.~~ Trustee, shall deliver such Settlement Notice ~~in writing~~ to converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs (x) ~~during~~ after the date of issuance of a Notice of Redemption ~~Period~~with respect to the Notes and prior to the related Redemption Date, in such Notice of ~~Redemption,~~ Redemption or (y) on or after ~~January~~ November 15, ~~2023~~2026, no later than ~~January~~ November 15, ~~2023~~2026). If the Company does not elect a Settlement Method ~~with respect to a Conversion Date~~ prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or ~~Combination~~ Physical Settlement with respect to any conversion on such Conversion ~~Date~~Date or during such period, and the Company shall be deemed to have elected ~~Physical~~ 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~~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~~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 all Holders, the Company may, prior to November 15, 2026, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 for all Conversion Dates occurring subsequent to delivery of such notice. (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 ~~(or is deemed to have elected)~~ to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of 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 20 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 20 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 ~~Shares~~Stock, the Company shall notify the ~~U.S.~~ Trustee and the Conversion Agent (if other than the ~~U.S.~~ 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 ~~U.S.~~ Trustee and the Conversion Agent (if other than the ~~U.S.~~ Trustee) shall have no responsibility for any such determination. (b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a ~~Definitive~~ Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common ~~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 14.02(h). The ~~U.S.~~ Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~15.03(a)~~15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (ib) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical ~~Settlement~~Settlement (provided that, with respect to any Conversion Date following the Regular Record Date immediately preceding the Maturity Date where Physical Settlement applies to the related conversion, the Company shall settle any such conversion on the Maturity Date), or 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 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 book-entry format through the Depositary~~, in the case of Global Notes, or in certificated form, in the case of Definitive Notes, in each case~~, in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the ~~U.S.~~ Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount 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 ~~U.S.~~ Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different 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 ~~issuance~~ 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 ~~U.S.~~ Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common ~~Shares~~ Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the ~~U.S.~~ Trustee, or the Custodian at the direction of the ~~U.S.~~ Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the ~~U.S.~~ Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the ~~U.S.~~ Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes 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 the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date 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 ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (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 shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Samples: Indenture (Revance Therapeutics, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the Company shall ~~satisfy its Conversion Obligation by paying~~ pay or ~~delivering~~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 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 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02. (i) All conversions for which the relevant Conversion Date occurs on or after February 1, 2024, and all conversions for which the relevant Conversion Date occurs on or after the Company’s issuance of a Notice of Redemption with respect to the Notes and prior to the related Redemption Date~~, and all conversions for which the relevant Conversion Date occurs on or after January 15, 2023~~, shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs on or after February 1, 2024, and any conversions for which the relevant Conversion Date occurs on or after the Company’s issuance of a Notice of Redemption with respect to the Notes but prior to the related Redemption Date~~, and any conversions for which the relevant Conversion Date occurs on or after January 15, 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 ~~any conversions for which~~ one of the ~~relevant Conversion Date occurs during a Redemption Period~~periods described in the third immediately succeeding set of parentheses, ~~or for which~~ as the ~~relevant Conversion Date occurs on or after January 15, 2023~~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 ~~U.S.~~ Trustee, shall deliver such Settlement Notice ~~in writing~~ to converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs (x) ~~during~~ after the date of issuance of a Notice of Redemption ~~Period~~with respect to the Notes and prior to the related Redemption Date, in such Notice of Redemption, or (y) on or after ~~January 15~~February 1, ~~2023~~2024, no later than ~~January 15~~February 1, ~~2023~~2024). If the Company does not elect a Settlement Method ~~with respect to a Conversion Date~~ prior to the deadline set forth in the immediately preceding sentence, the Company shall ~~no longer have~~ settle such conversions using the ~~right to elect Cash~~ Default Settlement ~~or Combination Settlement with respect to such Conversion Date, and the Company shall be deemed to have elected Physical Settlement in respect of its Conversion Obligation~~Method. Such Settlement Notice shall specify the relevant Settlement Method ~~and~~ and, in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar ~~Amount~~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~~Amount per $1,000 principal amount of Notes in such Settlement Notice, or if Combination Settlement otherwise applies but the Company does not timely notify holders of the Specified Dollar Amount per $1,000 principal amount of Notes, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. At any time prior to February 1, 2024, the Company may irrevocably elect to settle all conversions occurring on or after the date the Company gives notice thereof to Holders, the Trustee and the Conversion Agent (if other than the Trustee) through Combination Settlement with a Specified Dollar Amount the Company elects. (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 (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of 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 (or is deemed to have elected) 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 20 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 20 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 ~~Shares~~Stock, the Company shall notify the ~~U.S.~~ Trustee and the Conversion Agent (if other than the ~~U.S.~~ 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 ~~U.S.~~ Trustee and the Conversion Agent (if other than the ~~U.S.~~ Trustee) shall have no responsibility for any such determination. (b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the ~~applicable procedures~~ Applicable Procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a ~~Definitive~~ Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (~~a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion,~~ a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common ~~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 14.02(h). The ~~U.S.~~ Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered ~~for conversion~~ by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~15.03(a)~~15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. Any exercise by a Holder of its conversion rights in respect of a Note shall be irrevocable. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (ib) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the ~~second~~ third Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the ~~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 ~~Holder~~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 book-entry format through the Depositary, in the case of Global Notes, or in certificated form, in the case of Definitive Notes, in each case,~~ entitled in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall ~~execute~~ execute, and the ~~U.S.~~ Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so ~~surrendered~~ surrendered, a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or ~~U.S.~~ Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different 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 ~~issuance~~ 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 ~~U.S.~~ Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common ~~Shares~~ Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the ~~U.S.~~ Trustee, or the Custodian (if other than the Trustee) at the direction of the ~~U.S.~~ Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the ~~U.S.~~ Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the ~~U.S.~~ Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes 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 the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, any Redemption Date described in clause (2) of the immediately preceding sentence and any Fundamental Change Repurchase Date described in clause (3) of the immediately preceding sentence shall receive the full interest payment due on the Maturity Date ~~in cash~~ 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 ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (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~~ Period, and any fractional shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Samples: Indenture (Flexion Therapeutics Inc)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying or 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 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 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02. (i) All conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Notice of Redemption with respect to the Notes and prior to the related Redemption Date, and all conversions for which the relevant Conversion Date occurs on or after ~~January 15~~December 1, ~~2023~~2022, 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 Notice of Redemption with respect to the Notes but prior to the related Redemption Date, and any conversions for which the relevant Conversion Date occurs on or after ~~January 15~~December 1, ~~2023~~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 any conversions for which the relevant Conversion Date occurs ~~during~~ after the Company’s issuance of a Notice of Redemption ~~Period~~with respect to the Notes and prior to the related Redemption Date, or for which the relevant Conversion Date occurs on or after ~~January 15~~December 1, ~~2023~~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 ~~U.S.~~ Trustee, shall deliver such Settlement Notice ~~in writing~~ to converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs (x) ~~during~~ after the date of issuance of a Notice of Redemption ~~Period~~with respect to the Notes and prior to the related Redemption Date, in such Notice of ~~Redemption,~~ Redemption or (y) on or after ~~January 15~~December 1, ~~2023~~2022, no later than ~~January 15~~December 1, ~~2023~~2022). If the Company does not elect a Settlement Method ~~with respect to a Conversion Date~~ prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or ~~Combination~~ Physical Settlement with respect to any conversion on such Conversion ~~Date~~Date or during such period, and the Company shall be deemed to have elected ~~Physical~~ 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~~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~~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 all Holders, the Company may, prior to December 1, 2022, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 for all Conversion Dates occurring subsequent to delivery of such notice. (iv) The cash, shares of Common ~~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 ~~(or is deemed to have elected)~~ to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of 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 20 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 20 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 ~~Shares~~Stock, the Company shall notify the ~~U.S.~~ Trustee and the Conversion Agent (if other than the ~~U.S.~~ 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 ~~U.S.~~ Trustee and the Conversion Agent (if other than the ~~U.S.~~ Trustee) shall have no responsibility for any such determination. (b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a ~~Definitive~~ Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common ~~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 14.02(h). The ~~U.S.~~ Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~15.03(a)~~15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (ib) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical ~~Settlement~~Settlement (provided that, with respect to any Conversion Date following the Regular Record Date immediately preceding the Maturity Date where Physical Settlement applies to the related conversion, the Company shall settle any such conversion on the Maturity Date), or 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 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 book-entry format through the Depositary~~, in the case of Global Notes, or in certificated form, in the case of Definitive Notes, in each case~~, in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the ~~U.S.~~ Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount 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 ~~U.S.~~ Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different 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 ~~issuance~~ 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 ~~U.S.~~ Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common ~~Shares~~ Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the ~~U.S.~~ Trustee, or the Custodian at the direction of the ~~U.S.~~ Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the ~~U.S.~~ Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the ~~U.S.~~ Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes 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 the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date 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 ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (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 shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Samples: Indenture (MINDBODY, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying or delivering, as the case may be, to the converting Holder, in respect of each $1,000 ~~principal amount~~ Capitalized 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 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 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02. Notwithstanding the foregoing or anything else in this Indenture or the Notes, the Company shall be required to (and shall otherwise be deemed to) elect Cash Settlement in respect of all Notes submitted for conversion unless and until the Authorized Share Effective Date has occurred. (i) (x) All conversions of Called Notes for which the relevant Conversion Date occurs ~~after the Company’s issuance of a Notice of Redemption with respect to the Notes and prior to~~ during the related Redemption ~~Date,~~ Period and (y) all conversions for which the relevant Conversion Date occurs on or after ~~January 15~~February 28, ~~2023~~2026, shall be settled using the same Settlement Method. (ii) Except for any such conversions for which the relevant Conversion Date occurs ~~after the Company’s issuance of~~ during a ~~Notice of~~ Redemption ~~with respect to the Notes but prior to the related Redemption Date,~~ Period and any conversions for which the relevant Conversion Date occurs on or after ~~January 15~~February 28, ~~2023~~2026, and except to the extent the Company elects Physical Settlement to apply pursuant to Section 14.01(b)(ii) in a notice as described in such Section, 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 for which~~ one of the ~~relevant Conversion Date occurs during a Redemption Period~~periods described below, ~~or for which~~ as the ~~relevant Conversion Date occurs on or after January 15, 2023~~case may be), the Company elects to a Settlement Method, the Company shall deliver a 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 U.S. Trustee, shall deliver such Settlement Notice in writing~~ ) to converting Holders (with a copy to the Trustee and the Conversion Agent (if other than the Trustee)) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of (w) any conversions of Called Notes for which the relevant Conversion Date occurs ~~(x)~~ during a the related Redemption Period, in ~~such Notice~~ the related Redemption Notice, (x) any conversions of ~~Redemption, or (y)~~ Notes for which the relevant Conversion Date occurs on or after ~~January 15~~February 28, ~~2023~~2026, no later than ~~January 15~~the close of business on the Business Day immediately preceding February 28, ~~2023~~2026, (y) any conversion for which the Company has irrevocably elected Physical Settlement to apply pursuant to Section 14.01(b)(ii) in a notice as described in such Section or (z) any conversion for which the Company has irrevocably elected Combination Settlement, with a certain Specified Dollar Amount or a Minimum Specified Amount per $1,000 Capitalized Principal Amount of Notes, to apply pursuant to the provisions of this Section 14.02(a)(iii), as described in this Section 14.02(a)(iii)). If the Company does not timely elect a Settlement Method ~~with respect to a 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 ~~Combination~~ Physical Settlement ~~with respect to~~ for such ~~Conversion Date,~~ conversion or during such period and the Company shall be deemed to have elected ~~Physical~~ Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 Capitalized 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~~Amount per $1,000 Capitalized 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~~Amount per $1,000 Capitalized Principal Amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 Capitalized Principal Amount of Notes shall be deemed to be $1,000. By written notice to the Holders (with a copy to the Trustee and the Conversion Agent (if other than the Trustee)), the Company may, prior to February 28, 2026, at its option, elect to irrevocably fix the Settlement Method to any Settlement Method that the Company is then permitted to elect, including Combination Settlement with a Specified Dollar Amount per $1,000 Capitalized Principal Amount of Notes of $1,000 or with an ability to continue to set the Specified Dollar Amount per $1,000 Capitalized Principal Amount of Notes at or above a specific amount (the “Minimum Specified Amount”) set forth in such election notice. If the Company irrevocably elects Combination Settlement with an ability to continue to set the Specified Dollar Amount per $1,000 Capitalized Principal Amount of Notes at or above a specific amount, the Company shall send written notice to Holders converting their Notes, the Trustee and the Conversion Agent of such Specified Dollar Amount no later than the relevant deadline for election of a Settlement Method as described in this Section 14.02(a)(iii), or, if the Company does not timely notify Holders, such Specified Dollar Amount shall be the Minimum Specified Amount set forth in the election notice, unless no Minimum Specified Amount was set forth in the election notice, in which case such Specified Dollar Amount shall be $1,000 per $1,000 Capitalized Principal Amount of Notes. The irrevocable election shall apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such notice; provided that no such election will affect any Settlement Method theretofore elected (or deemed to be elected) with respect to any Note. For the avoidance of doubt, such an irrevocable election, if made, shall be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(i). However, the Company may nonetheless choose to execute such an amendment at its option. If the Company irrevocably fixes the Settlement Method pursuant to the provisions in this Section 14.02(a)(iii), and such Settlement Method is not Combination Settlement with a Specified Dollar Amount of $1,000 per $1,000 Capitalized Principal Amount of Notes, then, concurrently with providing written notice to Holders of such election, the Company shall either post the fixed Settlement Method on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission. (iv) The cash, shares of Common ~~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:~~follows (for the avoidance of doubt, with pro-ration for any portion of the Capitalized Principal Amount subject to conversion that is not an integral multiple of $1,000): (A) if the Company elects ~~(or is deemed to have elected)~~ to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 ~~principal amount~~ Capitalized 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~~ Capitalized Principal Amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 20 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, ~~to the converting Holder~~ in respect of each $1,000 ~~principal amount~~ Capitalized Principal Amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 20 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 ~~Shares~~Stock, the Company shall notify the ~~U.S.~~ Trustee and the Conversion Agent (if other than the ~~U.S.~~ 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 ~~U.S.~~ Trustee and the Conversion Agent (if other than the ~~U.S.~~ Trustee) shall have no responsibility for any such determination. (b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the ~~applicable~~ procedures of the Depositary in effect at that time for converting a beneficial interest in a Global Note and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) (and, 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 ~~Definitive~~ Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (~~a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion,~~ a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common ~~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 accrued interest that has not been capitalized and is payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The ~~U.S.~~ Trustee (~~and~~ and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such ~~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 ~~15.03(a)~~15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (ib) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the second Business Day immediately following the last Trading Day of the relevant Observation Period, in the case of any other Settlement Method; provided that, with respect to any Conversion Date occurring during a Redemption Period or after the Regular Record Date immediately preceding the Maturity Date, the Company will settle any such conversion for which Physical Settlement is applicable on the relevant Redemption Date or the Maturity Date, as applicable. If any shares of Common ~~Shares~~ Stock are due to a converting ~~Holder~~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 book-entry format through the Depositary, in the case of Global Notes, or in certificated form, in the case of Definitive Notes, in each case,~~ entitled in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the ~~U.S.~~ Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount 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 ~~U.S.~~ Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different 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~~ 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 or the Company’s stock transfer agent, as applicable, 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 ~~U.S.~~ Trustee receives a sum sufficient to pay any tax that is due by such ~~Holder~~ Xxxxxx in accordance with the immediately preceding sentence. (f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common ~~Shares~~ Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the ~~U.S.~~ Trustee, or the Custodian at the direction of the ~~U.S.~~ Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the ~~U.S.~~ Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the ~~U.S.~~ Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for any accrued ~~and unpaid interest, if any~~interest that has not been paid or capitalized, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the ~~principal amount~~ Capitalized Principal Amount of the Note and any accrued ~~and unpaid interest, if any~~interest that has not been paid or capitalized, to, but not including, the relevant Conversion Date. As a result, any accrued ~~and unpaid interest, if any,~~ interest that has not been paid or capitalized to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common ~~Shares~~Stock, accrued ~~and unpaid~~ interest that has not been paid or capitalized 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 on or 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 in cash at the ~~corresponding~~ Cash Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) Rate as if the Company ~~has specified a Redemption Date that is after a Regular Record Date and on or prior to~~ had elected the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date 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 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 (or is deemed to have elected) to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common Shares upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of 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 shares remaining after such computation shall be paid in cash.Cash Met

Appears in 1 contract

Samples: Fourth Supplemental Indenture (Nikola Corp)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the Company shall ~~satisfy its Conversion Obligation by paying~~ pay or ~~delivering~~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~~shares of Class C Capital Stock, together with cash, if applicable, in lieu of delivering any fractional share of ~~Common Shares~~ Class C Capital Stock in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”) or a combination of cash and ~~Common Shares~~shares of Class C Capital Stock, together with cash, if applicable, in lieu of delivering any fractional share of ~~Common Shares~~ Class C Capital Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02. (i) All conversions for which the relevant Conversion Date occurs on or after March 1, 2026, and all conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice ~~of Redemption~~ with respect to the Notes and prior to the related Redemption Date~~, and all conversions for which the relevant Conversion Date occurs on or after January 15, 2023~~, 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 ~~of Redemption~~ with respect to the Notes but prior to the related Redemption Date, and any conversions for which the relevant Conversion Date occurs on or after ~~January 15~~March 1, ~~2023~~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 ~~any conversions for which~~ one of the ~~relevant Conversion Date occurs during a Redemption Period~~periods described in the third immediately succeeding set of parentheses, ~~or for which~~ as the ~~relevant Conversion Date occurs on or after January 15, 2023~~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 ~~U.S.~~ Trustee, shall deliver such Settlement Notice ~~in writing~~ to converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs (x) ~~during~~ after the date of issuance of a Redemption ~~Period~~Notice with respect to the Notes and prior to the related Redemption Date, in such Redemption Notice ~~of Redemption,~~ or (y) on or after ~~January 15~~March 1, ~~2023~~2026, no later than ~~January 15~~March 1, ~~2023~~2026). If the Company does not elect a Settlement Method ~~with respect to a Conversion Date~~ prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or ~~Combination~~ Physical Settlement ~~with respect to such Conversion Date,~~ and the Company shall be deemed to have elected ~~Physical~~ 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~~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~~Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. (iv) The cash, ~~Common Shares~~ shares of Class C Capital Stock or combination of cash and ~~Common Shares~~ shares of Class C Capital Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects ~~(or is deemed to have elected)~~ to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, 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~~ shares of Class C Capital 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 20 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 20 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 Shares~~Class C Capital Stock, the Company shall notify the ~~U.S.~~ Trustee and the Conversion Agent (if other than the ~~U.S.~~ 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 ~~Common Shares~~shares of Class C Capital Stock. The ~~U.S.~~ Trustee and the Conversion Agent (if other than the ~~U.S.~~ Trustee) shall have no responsibility for any such determination. (b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the ~~applicable~~ procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a ~~Definitive~~ Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a ~~facsimile, PDF or other electronic transmission~~ facsimile thereof) (~~a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion,~~ a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ~~Common Shares~~ shares of Class C Capital Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The ~~U.S.~~ Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered ~~for conversion~~ by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~15.03(a)~~15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (ib) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any Common Shares are due to a converting Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of Common Shares to which such Holder shall be entitled, in book-entry format through the Depositary, in the case of Global Notes, or in certificated form, in the case of Definitive Notes, in each case, in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the U.S. Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount 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 U.S. Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different 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 issuance 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 U.S. Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any Common Shares issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the U.S. Trustee, or the Custodian at the direction of the U.S. Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the U.S. Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the U.S. Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes 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 the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date 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 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 (or is deemed to have elected) to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common Shares upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of 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 shares remaining after such computation shall be paid in cash.and

Appears in 1 contract

Samples: Indenture (Zillow Group, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the Company shall ~~satisfy its Conversion Obligation by paying~~ pay or ~~delivering~~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 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 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02. (i) All conversions for which the relevant Conversion Date occurs ~~after~~ during the ~~Company’s issuance of a Notice of~~ Common Conversion Period, the Maturity Conversion Period or the Redemption ~~with respect to~~ Period, as the ~~Notes and prior to the related Redemption Date, and all conversions for which the relevant Conversion Date occurs on or after January 15, 2023~~case may be, shall be settled using the same Settlement Method. (ii) Except for any ~~conversions for which the relevant~~ Conversion Date ~~occurs after~~ occurring during the ~~Company’s issuance of a Notice of~~ Common Conversion Period, the Maturity Conversion Period or the Redemption ~~with respect to the Notes but prior to the related Redemption Date, and any conversions for which the relevant Conversion Date occurs on or after January 15, 2023~~Period, 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.. 61 #91808965v6 10058821.1 (iii) If, in respect of any Conversion Date (or ~~any conversions for which~~ one of the ~~relevant Conversion Date occurs during a Redemption Period~~periods described in the third immediately succeeding set of parentheses, ~~or for which~~ as the ~~relevant Conversion Date occurs on or after January 15, 2023~~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 ~~U.S.~~ Trustee, shall deliver such Settlement Notice ~~in writing~~ to converting Holders no later than the close of business on the Scheduled Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs (x) during a the Common Conversion Period, no later than December 15, 2024, (y) in the case of the Maturity Conversion Period, no later than December 15, 2048 or (z) in the case of the Redemption Period, in ~~such Notice of Redemption, or (y) on or after January 15, 2023, no later than January 15, 2023~~the relevant Redemption Notice). If the Company does not elect a Settlement Method ~~with respect to a Conversion Date~~ prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or ~~Combination~~ Physical Settlement ~~with respect to such Conversion Date,~~ and the Company shall be deemed to have elected ~~Physical~~ 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~~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~~Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. (iv) The cash, 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 (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of 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 20 consecutive Trading Days during the related Observation Period; and (C) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 20 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~~ Conversion Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common ~~Shares~~Stock, the Company shall notify the ~~U.S.~~ Trustee and the Conversion Agent (if other than the ~~U.S.~~ 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 ~~U.S.~~ Trustee and the Conversion Agent (if other than the ~~U.S.~~ Trustee) shall have no responsibility for any such determination. (b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the ~~applicable~~ procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a ~~Definitive~~ Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a ~~facsimile, PDF or other electronic transmission~~ facsimile thereof) (~~a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion,~~ a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common ~~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 14.02(h). The ~~U.S. Trustee (and if different, the~~ Conversion ~~Agent)~~ Agent shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered ~~for conversion~~ by a Holder thereof if such Holder has also delivered a Repurchase Notice or Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Repurchase Notice or Fundamental Change Repurchase Notice in accordance with Section ~~15.03(a)~~15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (ib) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any Common Shares are due to a converting Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of Common Shares to which such Holder shall be entitled, in book-entry format through the Depositary, in the case of Global Notes, or in certificated form, in the case of Definitive Notes, in each case, in satisfaction of the Company’s Conversion Obligation.63 #91808965v6 10058821.1 (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the ~~U.S.~~ Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount 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 ~~U.S.~~ Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different 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 ~~issuance~~ 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 ~~U.S.~~ Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common ~~Shares~~ Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the ~~U.S.~~ Trustee, or the Custodian at the direction of the ~~U.S.~~ Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the ~~U.S.~~ Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the ~~U.S.~~ Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes 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 the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date 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 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 (or is deemed to have elected) to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common Shares upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of 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 shares remaining after such computation shall be paid in cash.64 #91808965v6 10058821.1

Appears in 1 contract

Samples: Indenture (Euronet Worldwide Inc)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying or 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 14.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with ~~cash~~a cash payment, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02. (i) All conversions for which the relevant Conversion Date occurs ~~after the Company’s issuance of a Notice of Redemption with respect to the Notes and prior to the related Redemption Date, and all conversions for which the relevant Conversion Date occurs~~ (x) on or after January 15, ~~2023~~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 ~~after the Company’s issuance of~~ during a ~~Notice of~~ Redemption ~~with respect to the Notes but prior to the related Redemption Date,~~ Period and any conversions for which the relevant Conversion Date occurs on or after January 15, ~~2023~~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 ~~any conversions for which~~ the ~~relevant Conversion Date occurs during a Redemption Period~~period described in the third immediately succeeding set of parentheses, ~~or for which~~ as the ~~relevant Conversion Date occurs on or after January 15, 2023~~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 U.S. 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 Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs (x) during a Redemption Period, in such ~~Notice of Redemption~~Redemption Notice, or (y) on or after January 15, ~~2023~~2026, no later than January 15, ~~2023~~2026). If the Company does not elect a Settlement Method ~~with respect to a Conversion Date~~ prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or ~~Combination~~ Physical Settlement with respect to any conversion on such Conversion ~~Date~~Date or during such period, as the case may be, and the Company shall be deemed to have elected ~~Physical~~ 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~~Amount per $1,000 principal amount of 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~~Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes to be converted shall be deemed to be $1,000. (iv) The cash, shares of Common ~~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 ~~(or is deemed to have elected)~~ to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of 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 20 10 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 20 10 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 ~~Shares~~Stock, the Company shall notify the ~~U.S.~~ Trustee and the Conversion Agent (if other than the ~~U.S.~~ 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 ~~U.S.~~ Trustee and the Conversion Agent (if other than the ~~U.S.~~ Trustee) shall have no responsibility for any such determination. (b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the ~~applicable~~ procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a ~~Definitive~~ Physical Note (1A) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a ~~facsimile, PDF or other electronic transmission~~ facsimile thereof) (~~a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion,~~ a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common ~~Shares~~ Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2B) 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, (3C) if required, furnish appropriate endorsements and transfer documents and (4D) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The ~~U.S.~~ Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this ~~Article~~ ARTICLE 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered ~~for conversion~~ by a Holder thereof if such ~~Holder~~ Xxxxxx has also delivered a ~~Fundamental Change~~ Repurchase Event Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such ~~Fundamental Change~~ Repurchase Event Repurchase Notice in accordance with Section ~~15.03(a)~~15.03, in the case of Physical Notes, or through the applicable procedures of the Depositary, in the case of Global Notes. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (ib) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall ~~pay or deliver, as the case may be,~~ deliver the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the 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 ~~Holder~~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 book-entry format through the Depositary, in the case of Global Notes, or in certificated form, in the case of Definitive Notes, in each case,~~ entitled in satisfaction of the Company’s Conversion Obligation. (d) In case any Physical Note shall be surrendered for partial conversion, the Company shall execute and the ~~U.S.~~ Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount 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 ~~U.S.~~ Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different 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 ~~issuance~~ 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 shall work directly with its stock transfer agent to effect any delivery of Common Stock in connection with a conversion. 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 ~~U.S.~~ Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common ~~Shares~~ Stock issued upon the conversion of any Note as provided in this ~~Article~~ ARTICLE 14. (g) Upon the conversion of an interest in a Global Note, the ~~U.S.~~ Trustee, or the Custodian (if other than the Trustee) at the direction of the ~~U.S.~~ Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the ~~U.S.~~ Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the ~~U.S.~~ Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but ~~not including~~excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~not including~~excluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common ~~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 the Notes so converted; provided that no such payment shall be required (1i) for conversions ~~following~~ after the close of business on the Regular Record Date immediately preceding the Maturity Date; (2ii) if the Company has specified a ~~Redemption~~ Repurchase Event Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3iii) if the Company has specified a ~~Fundamental Change Repurchase~~ Redemption Date that is after a Regular Record Date and on or prior to the ~~Business Day~~ second Scheduled Trading day immediately ~~following~~ succeeding the corresponding Interest Payment Date; or (4iv) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record after the close of business on the Regular Record Date immediately preceding the Maturity Date, any Repurchase Event Repurchase Date or Redemption Date, in each case, as described above, shall receive the full interest payment in cash due on the Maturity Date ~~in cash~~ or other applicable Interest Payment Date regardless of whether their Notes have been converted or redeemed 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 ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (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 shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Samples: Supplemental Indenture (NantHealth, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying or 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 14.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with ~~cash~~a cash payment, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02. ~~(i)~~ i. All conversions for which the relevant Conversion Date occurs ~~after the Company’s issuance of a Notice of Redemption with respect to the Notes and prior to the related Redemption Date, and all conversions for which the relevant Conversion Date occurs~~ (x) on or after January 15, ~~2023~~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 ~~after the Company’s issuance of~~ during a ~~Notice of~~ Redemption ~~with respect to the Notes but prior to the related Redemption Date,~~ Period and any conversions for which the relevant Conversion Date occurs on or after January 15, ~~2023~~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 ~~any conversions for which~~ the ~~relevant Conversion Date occurs during a Redemption Period~~period described in the third immediately succeeding set of parentheses, ~~or for which~~ as the ~~relevant Conversion Date occurs on or after January 15, 2023~~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 U.S. 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 Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs (x) during a Redemption Period, in such ~~Notice of Redemption~~Redemption Notice, or (y) on or after January 15, ~~2023~~2026, no later than January 15, ~~2023~~2026). If the Company does not elect a Settlement Method ~~with respect to a Conversion Date~~ prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or ~~Combination~~ Physical Settlement with respect to any conversion on such Conversion ~~Date~~Date or during such period, as the case may be, and the Company shall be deemed to have elected ~~Physical~~ 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~~Amount per $1,000 principal amount of 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~~Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes to be converted shall be deemed to be $1,000. (iv) . The cash, shares of Common ~~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)~~ A. if the Company elects ~~(or is deemed to have elected)~~ to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date; ~~(B)~~ 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 20 10 consecutive Trading Days during the related Observation Period; and ~~(C)~~ 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 20 10 consecutive Trading Days during the related Observation Period. ~~(v)~~ 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 ~~Shares~~Stock, the Company shall notify the ~~U.S.~~ Trustee and the Conversion Agent (if other than the ~~U.S.~~ 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 ~~U.S.~~ Trustee and the Conversion Agent (if other than the ~~U.S.~~ Trustee) shall have no responsibility for any such determination. (b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the ~~applicable~~ procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a ~~Definitive~~ Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a ~~facsimile, PDF or other electronic transmission~~ facsimile thereof) (~~a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion,~~ a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common ~~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 14.02(h). The ~~U.S.~~ Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered ~~for conversion~~ by a Holder thereof if such Holder has also delivered a ~~Fundamental Change~~ Repurchase Event Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such ~~Fundamental Change~~ Repurchase Event Repurchase Notice in accordance with Section ~~15.03(a)~~15.03, in the case of Physical Notes, or through the applicable procedures of the Depositary, in the case of Global Notes. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (ib) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall ~~pay or deliver, as the case may be,~~ deliver the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the 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 ~~Holder~~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 book-entry format through the Depositary, in the case of Global Notes, or in certificated form, in the case of Definitive Notes, in each case,~~ entitled in satisfaction of the Company’s Conversion Obligation. (d) In case any Physical Note shall be surrendered for partial conversion, the Company shall execute and the ~~U.S.~~ Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount 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 ~~U.S.~~ Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different 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 ~~issuance~~ 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 shall work directly with its stock transfer agent to effect any delivery of Common Stock in connection with a conversion. 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 ~~U.S.~~ Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common ~~Shares~~ Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the ~~U.S.~~ Trustee, or the Custodian (if other than the Trustee) at the direction of the ~~U.S.~~ Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the ~~U.S.~~ Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the ~~U.S.~~ Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but ~~not including~~excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~not including~~excluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common ~~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 the Notes so converted; provided that no such payment shall be required (1) for conversions ~~following~~ after the close of business on the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a ~~Redemption~~ Repurchase Event 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 ~~Fundamental Change Repurchase~~ Redemption Date that is after a Regular Record Date and on or prior to the ~~Business Day~~ second Scheduled Trading day immediately ~~following~~ succeeding the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record after the close of business on the Regular Record Date immediately preceding the Maturity Date, any Repurchase Event Repurchase Date or Redemption Date, in each case, as described above, shall receive the full interest payment in cash due on the Maturity Date ~~in cash~~ or other applicable Interest Payment Date regardless of whether their Notes have been converted or redeemed 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 ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (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 shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Samples: Note Purchase Agreement (NantHealth, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the Company shall ~~satisfy its Conversion Obligation by paying~~ pay or ~~delivering~~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 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 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02. (i) All conversions for which the relevant Conversion Date occurs on or after May 15, 2026, and all conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Notice of Redemption with respect to ~~the~~ any Notes and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date~~, and all conversions for which the relevant Conversion Date occurs on or after January 15, 2023~~, 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 Notice of Redemption with respect to ~~the~~ any Notes but prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption ~~Date,~~ Date and any conversions for which the relevant Conversion Date occurs on or after ~~January~~ May 15, ~~2023~~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 ~~any conversions for which~~ the ~~relevant Conversion Date occurs during a Redemption Period~~period described in the third immediately succeeding set of parentheses, ~~or for which~~ as the ~~relevant Conversion Date occurs on or after January 15, 2023~~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 ~~U.S.~~ Trustee, shall deliver such Settlement Notice ~~in writing~~ to converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs (x) ~~during~~ after the date of issuance of a Notice of Redemption ~~Period~~with respect to the Notes and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date, in such Notice of ~~Redemption,~~ Redemption or (y) on or after ~~January~~ May 15, ~~2023~~2026, no later than ~~January~~ May 15, ~~2023~~2026). If the Company does not elect a Settlement Method ~~with respect to a Conversion Date~~ prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or ~~Combination~~ Physical Settlement ~~with respect to such Conversion Date,~~ and the Company shall be deemed to have elected ~~Physical~~ 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~~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~~Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. (iv) The cash, shares of Common ~~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 ~~(or is deemed to have elected)~~ to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of 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 (or is deemed to have elected) 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 20 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, ~~to the converting Holder~~ in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 20 30 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 ~~Shares~~Stock, the Company shall notify the ~~U.S.~~ Trustee and the Conversion Agent (if other than the ~~U.S.~~ 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 ~~U.S.~~ Trustee and the Conversion Agent (if other than the ~~U.S.~~ Trustee) shall have no responsibility for any such determination. (b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the ~~applicable~~ procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a ~~Definitive~~ Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a ~~facsimile, PDF or other electronic transmission~~ facsimile thereof) (~~a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion,~~ a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common ~~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 14.02(h). The ~~U.S.~~ Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered ~~for conversion~~ by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~15.03(a)~~15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (ib) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to a converting ~~Holder~~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 through the Depositary, in the case of Global Notes, or in certificated form, in the case of Definitive Notes, in each case~~format, in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the ~~U.S.~~ Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount 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 ~~U.S.~~ Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different 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 ~~issuance~~ 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 Common ~~Shares~~ Stock being issued in a name other than the Holder’s name until the ~~U.S.~~ Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common ~~Shares~~ Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the ~~U.S.~~ Trustee, or the Custodian at the direction of the ~~U.S.~~ Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the ~~U.S.~~ Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the ~~U.S.~~ Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes 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 the Notes so converted; provided that no such payment shall be required (1) for conversions ~~following~~ after the close of business on the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a ~~Redemption~~ 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 ~~Fundamental Change Repurchase~~ Redemption Date that is after a Regular Record Date and on or prior to the ~~Business~~ second Scheduled Trading Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all applicable Holders of record at the close of business on the Regular Record Date immediately preceding the Maturity Date or any Redemption Date shall receive the full interest payment due on the Maturity Date ~~in cash~~ or any Redemption Date, as the case may be, 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 of record as of the close of business on the relevant Conversion Date (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (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 shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Samples: Indenture (Wayfair Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the Company shall ~~satisfy its Conversion Obligation by paying~~ pay or ~~delivering~~deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Class A Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Class A Common ~~Shares~~ Stock in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Class A Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Class A Common ~~Shares~~ Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02. (i) All conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Notice of Redemption with respect to the Notes and prior to the related Redemption Date, and all conversions for which the relevant Conversion Date occurs on or after ~~January~~ April 15, ~~2023~~2025, 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 Notice of Redemption with respect to the Notes but prior to the related Redemption Date, and any conversions for which the relevant Conversion Date occurs on or after ~~January~~ April 15, ~~2023~~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 ~~any conversions for which~~ the ~~relevant Conversion Date occurs during a Redemption Period~~period described in the third immediately succeeding set of parentheses, ~~or for which~~ as the ~~relevant Conversion Date occurs on or after January 15, 2023~~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 ~~U.S.~~ Trustee, shall deliver such Settlement Notice ~~in writing~~ to converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs (x) ~~during~~ after the date of issuance of a Notice of Redemption ~~Period~~with respect to the Notes and prior to the related Redemption Date, in such Notice of ~~Redemption,~~ Redemption or (y) on or after ~~January~~ April 15, ~~2023~~2025, no later than ~~January 15~~April 14, ~~2023~~2025). If the Company does not elect a Settlement Method ~~with respect to a Conversion Date~~ prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or ~~Combination~~ Physical Settlement ~~with respect to such Conversion Date,~~ and the Company shall be deemed to have elected ~~Physical~~ 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~~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~~Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. (iv) The cash, shares of Class A Common ~~Shares~~ Stock or combination of cash and shares of Class A Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects ~~(or is deemed to have elected)~~ to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, 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 Class A 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 20 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 20 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 related Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Class A Common ~~Shares~~Stock, the Company shall notify the ~~U.S.~~ Trustee and the Conversion Agent (if other than the ~~U.S.~~ 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 Class A Common ~~Shares~~Stock. The ~~U.S.~~ Trustee and the Conversion Agent (if other than the ~~U.S.~~ Trustee) shall have no responsibility for any such determination. (b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the ~~applicable~~ procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a ~~Definitive~~ Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a ~~facsimile, PDF or other electronic transmission~~ facsimile thereof) (~~a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion,~~ a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Class A 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 14.02(h). The ~~U.S.~~ Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be ~~surrendered for conversion~~ delivered by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~15.03(a)~~15.03. If a Holder submits its Notes for required repurchase, the Holder’s right to withdraw the Fundamental Change Repurchase Notice and convert the Notes that are subject to repurchase will terminate at the close of business on the Business Day immediately preceding the relevant Fundamental Change Repurchase Date. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (ib) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the second Business Day immediately following the last Trading Day of the relevant Observation Period, in the case of any other Settlement Method. If any shares of Class A Common ~~Shares~~ Stock are due to a converting Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of shares of Class A Common ~~Shares~~ Stock to which such Holder shall be entitled, in certificate form or in book-entry ~~format through the Depositary, in the case of Global Notes, or in certificated form, in the case of Definitive Notes, in each case~~format, in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the ~~U.S.~~ Trustee shall authenticate and deliver to ~~or upon the written order of~~ the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount 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 ~~U.S.~~ 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 ~~issuance~~ issue of any shares of Class A 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 Class A Common ~~Shares~~ Stock being issued in a name other than the Holder’s name until the ~~U.S.~~ Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Class A Common ~~Shares~~ Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the ~~U.S.~~ Trustee, or the Custodian at the direction of the ~~U.S.~~ Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the ~~U.S.~~ Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the ~~U.S.~~ Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Class A 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 the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date 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 Class A 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 ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be). Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Class A Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Class A 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,~~ 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 shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Samples: Indenture (Evolent Health, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the Company shall ~~satisfy its Conversion Obligation by paying~~ pay or ~~delivering~~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 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 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~the Company’s issuance of a Notice of Redemption with respect to the Notes and prior to the related Redemption Date~~December 1, 2021, and all conversions for which the relevant Conversion Date occurs on or after ~~January 15, 2023~~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 ~~the Company’s issuance of a Notice of Redemption with respect to the Notes but prior to the related Redemption Date~~December 1, 2021, and any conversions for which the relevant Conversion Date occurs on or after ~~January 15, 2023~~the Company’s issuance of a Redemption Notice with respect to the Notes but prior to the related Redemption 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 ~~any conversions for which~~ one of the ~~relevant Conversion Date occurs during a Redemption Period~~periods described in the third immediately succeeding set of parentheses, ~~or for which~~ as the ~~relevant Conversion Date occurs on or after January 15, 2023~~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 U.S. 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 Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs (x) ~~during~~ after the date of issuance of a Redemption ~~Period~~Notice with respect to the Notes and prior to the related Redemption Date, in such Redemption Notice ~~of Redemption,~~ or (y) on or after ~~January 15~~December 1, ~~2023~~2021, no later than ~~January 15~~December 1, ~~2023~~2021). If the Company does not elect a Settlement Method ~~with respect to a Conversion Date~~ prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or ~~Combination~~ Physical Settlement ~~with respect to such Conversion Date,~~ and the Company shall be deemed to have elected ~~Physical~~ 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~~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~~Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. (iv) The cash, shares of Common ~~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 ~~(or is deemed to have elected)~~ to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of 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 20 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 20 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 ~~Shares~~Stock, the Company shall notify the ~~U.S.~~ Trustee and the Conversion Agent (if other than the ~~U.S.~~ 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 ~~U.S.~~ Trustee and the Conversion Agent (if other than the ~~U.S.~~ Trustee) shall have no responsibility for any such determination. (b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the ~~applicable~~ procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a ~~Definitive~~ Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a ~~facsimile, PDF or other electronic transmission~~ facsimile thereof) (~~a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion,~~ a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common ~~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 14.02(h). The ~~U.S.~~ Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered ~~for conversion~~ by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~15.03(a)~~15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (ib) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the ~~second~~ third Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the ~~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 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 book-entry format through the Depositary, in ~~the case of Global Notes, or in certificated form, in the case of Definitive Notes, in each case, in~~ satisfaction of the Company’s Conversion Obligation. (d) In case any Physical Note shall be surrendered for partial conversion, the Company shall execute and the ~~U.S.~~ Trustee shall authenticate and deliver to or upon the written order of the Holder of the Physical Note so surrendered a new Physical Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Physical Note, without payment of any service charge by the converting Holder but, if required by the Company or ~~U.S.~~ Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental 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 ~~issuance~~ 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 ~~U.S.~~ Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common ~~Shares~~ Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the ~~U.S.~~ Trustee, or the Custodian at the direction of the ~~U.S.~~ Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the ~~U.S.~~ Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the ~~U.S.~~ Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes 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~~ Date, however, must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date 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 ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (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 shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Samples: Indenture (Silicon Laboratories Inc)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this ~~Section~~ ‎Section 14.02, ~~Section~~ ‎Section 14.03(b) ), and ~~Section~~ ‎Section 14.07(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying or 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~~ ‎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~~ ‎Section 14.02 (“Combination Settlement”), at its election, as set forth in this ~~Section~~ ‎Section 14.02. (i) All conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Notice of Redemption with respect to the Notes and prior to the related Redemption Date, and all conversions for which the relevant Conversion Date occurs occurring (x) on or after ~~January~~ August 15, ~~2023~~2025, (y) during a Redemption Period or (z) during the period after delivery to the Holders of a Certain Distributions Notification until the related Certain Distributions Conversion Period End 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 Notice of Redemption with respect to the Notes but prior to the related Redemption Date, and any conversions for which the relevant Conversion Date occurs~~ (x) on or after ~~January~~ August 15, ~~2023~~2025, (y) during a Redemption Period or (z) during the period after delivery to the Holders of a Certain Distributions Notification until the related Certain Distributions Conversion Period End 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) (A) If, in respect of any Conversion Date (or ~~any conversions for which~~ one of the ~~relevant Conversion Date occurs during a Redemption Period~~periods described in the fourth immediately succeeding set of parentheses, ~~or for which~~ as the ~~relevant Conversion Date occurs on or after January 15, 2023~~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 ~~U.S.~~ Conversion Agent (if other than the Trustee~~, shall deliver such Settlement Notice in writing to converting Holders~~ ) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions ~~for which the relevant Conversion Date occurs~~ occurring (x) during a Redemption Period, in such ~~Notice~~ Redemption Notice, (y) during the period after delivery to the Holders of ~~Redemption,~~ a Certain Distributions Notification until the related Certain Distributions Conversion Period End Date in such Certain Distributions Notification or (yz) on or after ~~January~~ August 15, ~~2023~~2025, no later than ~~January~~ the close of business on the Business Day immediately preceding August 15, ~~2023~~2025) (in each case, the “Settlement Method Election Deadline”). If the Company does not timely elect a Settlement Method with respect to ~~a Conversion Date~~ any conversion prior to the ~~deadline set forth in the immediately preceding sentence~~Settlement Method Election Deadline, ~~the Company shall no longer have the right to elect Cash Settlement or Combination Settlement with respect to such Conversion Date, and~~ then the Company shall be deemed to have elected ~~Physical~~ the Default Settlement in Method with respect ~~of its Conversion Obligation~~to such Conversion. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar ~~Amount~~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,~~ Amount then the Specified Dollar Amount ~~shall~~ for such conversion will be deemed to be $1,000. (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 (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each 1,000 per $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 20 consecutive Trading Days during the related Observation Period; and (C) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 20 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 PeriodNotice. 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 Shares, the Company shall notify the U.S. Trustee and the Conversion Agent (if other than the U.S. 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 Common Shares. The U.S. Trustee and the Conversion Agent (if other than the U.S. Trustee) shall have no responsibility for any such determination. (b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a Definitive Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any 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 14.02(h). The U.S. Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03(a). If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (i) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any Common Shares are due to a converting Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of Common Shares to which such Holder shall be entitled, in book-entry format through the Depositary, in the case of Global Notes, or in certificated form, in the case of Definitive Notes, in each case, in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the U.S. Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount 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 U.S. Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different 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 issuance 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 U.S. Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any Common Shares issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the U.S. Trustee, or the Custodian at the direction of the U.S. Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the U.S. Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the U.S. Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes 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 the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for For the avoidance of doubt, ~~all Holders of record on~~ the ~~Regular Record Date immediately preceding~~ Company’s failure to timely elect a Settlement Method or specify 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~~applicable Specified Dollar Amount will not constitute a default 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 (or is deemed to have elected) to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common Shares upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of 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 shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Samples: Indenture (Esperion Therapeutics, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the Company shall ~~satisfy its Conversion Obligation by paying~~ pay or ~~delivering~~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 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 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02, and subject to any limitations imposed by Section 14.13. (i) All conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Notice of Redemption with respect to the Notes and prior to the related Redemption ~~Date, and all conversions for which the relevant Conversion~~ Date ~~occurs on or after January 15, 2023,~~ 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 Notice of Redemption with respect to the Notes but prior to the related Redemption Date~~, and any conversions for which the relevant Conversion Date occurs on or after January 15, 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 ~~any conversions for which~~ the ~~relevant Conversion Date occurs during a Redemption Period~~period described in the third immediately succeeding set of parentheses, ~~or for which~~ as the ~~relevant Conversion Date occurs on or after January 15, 2023~~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), and the ~~Company~~Company has not previously irrevocably elected a Settlement Method as described under Section 14.02(a)(vi), ~~through~~ the ~~U.S. 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 Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs ~~(x) during~~ after the date of issuance of a Notice of Redemption ~~Period~~with respect to the Notes and prior to the related Redemption Date, in such Notice of Redemption~~, or (y) on or after January 15, 2023, no later than January 15, 2023~~). If the Company does not elect a Settlement Method ~~with respect to a Conversion Date~~ prior to the deadline set forth in the immediately preceding sentence, unless the Company has previously irrevocably elected a Settlement Method as described under Section 14.02(a)(vi), unless Physical Settlement would otherwise be prohibited by Section 14.13, the Company shall no longer have the right to elect Cash Settlement or ~~Combination~~ Physical Settlement ~~with respect to~~ for such ~~Conversion Date,~~ conversion and the Company shall be deemed to have elected ~~Physical~~ Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. If Physical Settlement would otherwise be prohibited by Section 14.13 with respect to the Company’s Conversion Obligations for the relevant Conversion Date, the Company shall be required to elect Cash Settlement for such conversion. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar ~~Amount~~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~~Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. (iv) The cash, shares of Common ~~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 ~~(or is deemed to have elected)~~ to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of 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 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, ~~to the converting Holder~~ in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 20 consecutive 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 ~~Shares~~Stock, the Company shall notify the ~~U.S.~~ Trustee and the Conversion Agent (if other than the ~~U.S.~~ 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 ~~U.S.~~ Trustee and the Conversion Agent (if other than the ~~U.S.~~ Trustee) shall have no responsibility for any such determination. (vi) The Company may, unless the Company has previously elected (or is deemed to have elected) a Settlement Method, at any time prior to any Conversion Date for any Note, and without the consent of the Holders, irrevocably elect a Settlement Method to apply in respect of such Notes converted following the date of the Company’s election. The Company will inform Holders, the Trustee and the Conversion Agent (if other than the Trustee), of such election and, if Combination Settlement applies, the Specified Dollar Amount. (b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a ~~Definitive~~ Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable ~~procedure~~ procedures of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common ~~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 unpaid interest and is payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The ~~U.S.~~ Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on promptly following the Conversion Date for such conversion. No 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 ~~15.03(a)~~15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (ib) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date (or, in respect of any Conversion Date occurring after June 15, 2029, on the Maturity 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 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 Stock (including any Additional Shares issuable in connection with a Permitted Make-Whole Conversion) to which such Holder shall be entitled, in certificated form or book-entry format through the ~~Depositary,~~ Depositary (provided that shares of Common Stock required to bear the Affiliate Restrictive Stock Legend shall be issued in ~~the case of Global Notes,~~ certificated form or in ~~certificated form, in~~ book-entry form on the ~~case~~ books of ~~Definitive Notes, in each case~~the Company’s transfer agent), in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the ~~U.S.~~ Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount 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 ~~U.S.~~ Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different 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 ~~issuance~~ issue of any shares of Common Stock upon conversion (including any Additional Shares ~~upon conversion~~issuable in connection with a Permitted Make-Whole 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 ~~U.S.~~ Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common ~~Shares~~ Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the ~~U.S.~~ Trustee, or the Custodian at the direction of the ~~U.S.~~ Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the ~~U.S.~~ Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the ~~U.S.~~ Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for ~~accrued and~~ unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and ~~accrued and~~ unpaid interest, if any, to, but not including, the relevant Conversion Date. As a ~~result, accrued and~~ result any unpaid ~~interest, if any,~~ interest to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. 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~~conversion (excluding cash payments for fractional shares). Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and on or prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the close of business on the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a ~~Redemption~~ Fundamental Change Repurchase Date or a Special Repurchase Date, as applicable, 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 ~~Fundamental Change Repurchase~~ Redemption Date that is after a Regular Record Date occurring after the Interest Payment Date of January 1, 2025 and on or prior to the ~~Business~~ second Scheduled Trading Day immediately ~~following~~ succeeding the corresponding Interest Payment Date; or (4) to the extent of any ~~Defaulted Amounts~~overdue interest, if any ~~Defaulted Amounts~~ overdue interest exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date 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 Stock (including any Additional Shares issuable in connection with a Permitted Make-Whole Conversion) 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 ~~(or is deemed to have elected)~~ to satisfy the related Conversion ~~Obligation~~ Obligations by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (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 shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Samples: Indenture (Complete Solaria, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the Company shall ~~satisfy its Conversion Obligation by paying~~ pay or ~~delivering~~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 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 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02. (i) All conversions for which the relevant Conversion Date occurs ~~after the Company’s issuance of a Notice of Redemption with respect to the Notes and prior to the related Redemption Date, and all conversions for which the relevant Conversion Date occurs~~ on or after ~~January~~ May 15, ~~2023,~~ 2018 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 Notice of Redemption with respect to the Notes but prior to the related Redemption Date, and any conversions for which the relevant Conversion Date occurs~~ on or after ~~January~~ May 15, ~~2023~~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 ~~any conversions for which~~ the ~~relevant Conversion Date occurs during a Redemption Period~~period described in the fourth immediately succeeding set of parentheses, ~~or for which~~ as the ~~relevant Conversion Date occurs on or after January 15, 2023~~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 ~~U.S. Trustee~~Conversion Agent, shall deliver such Settlement Notice ~~in writing~~ to the Trustee, the Conversion Agent (if other than the Trustee) and converting Holders no later than the close of business on the second Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs ~~(x) during a Redemption Period, in such Notice of Redemption, or (y)~~ on or after ~~January~~ May 15, ~~2023~~2018, no later than ~~January~~ May 15, ~~2023~~2018). If the Company does not elect a Settlement Method ~~with respect to a Conversion Date~~ prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or ~~Combination~~ Physical Settlement ~~with respect to such Conversion Date,~~ and the Company shall be deemed to have elected ~~Physical~~ 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~~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~~Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. (iv) The cash, shares of Common ~~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 ~~(or is deemed to have elected)~~ to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of 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 20 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, ~~to the converting Holder~~ in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 20 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 ~~Shares~~Stock, the Company shall notify the ~~U.S.~~ Trustee and the Conversion Agent (if other than the ~~U.S.~~ 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 ~~U.S.~~ Trustee and the Conversion Agent (if other than the ~~U.S.~~ Trustee) shall have no responsibility for any such determination. (b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the ~~applicable~~ procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a ~~Definitive~~ Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a ~~facsimile, PDF or other electronic transmission~~ facsimile thereof) (~~a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion,~~ a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common ~~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 14.02(h). The ~~U.S.~~ Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered ~~for conversion~~ by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~15.03(a)~~15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (ib) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the ~~second~~ third Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the ~~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 ~~Holder~~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 book-entry format through the Depositary, in the case of Global Notes, or in certificated form, in the case of Definitive Notes, in each case,~~ entitled in satisfaction of the Company’s Conversion Obligation. (d) In case any Physical Note shall be surrendered for partial conversion, the Company shall execute and the ~~U.S.~~ Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount 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 ~~U.S.~~ Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different 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 ~~issuance~~ 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 Common Shares being issued in a name other than the Holder’s name until the U.S. Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common ~~Shares~~ Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the ~~U.S.~~ Trustee, or the Custodian at the direction of the ~~U.S.~~ Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the ~~U.S.~~ Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the ~~U.S.~~ Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes 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~~ shall receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of such interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a ~~Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a~~ Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date, in respect of Notes converted after the Close of Business on such Regular Record Date and on or prior to the Open of Business on such Interest Payment Date; or (43) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. 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~~ become the holder of record of such shares as of the close of business on the relevant Conversion Date (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (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 shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Samples: First Supplemental Indenture (Amag Pharmaceuticals Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying or 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 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 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02. (i) All conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Notice of Redemption with respect to the Notes and prior to the related Redemption Date, and all conversions for which the relevant Conversion Date occurs on or after ~~January~~ June 15, ~~2023~~2025, 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 Notice of Redemption with respect to the Notes but prior to the related Redemption Date, and any conversions for which the relevant Conversion Date occurs on or after ~~January~~ June 15, ~~2023~~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 any conversions for which the relevant Conversion Date occurs ~~during~~ after the Company’s issuance of a Notice of Redemption ~~Period~~with respect to the Notes and prior to the related Redemption Date, or for which the relevant Conversion Date occurs on or after ~~January~~ June 15, ~~2023~~2025), 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 ~~U.S.~~ Trustee, shall deliver such Settlement Notice ~~in writing~~ to converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs (x) ~~during~~ after the date of issuance of a Notice of Redemption ~~Period~~with respect to the Notes and prior to the related Redemption Date, in such Notice of ~~Redemption,~~ Redemption or (y) on or after ~~January~~ June 15, ~~2023~~2025, no later than ~~January~~ June 15, ~~2023~~2025). If the Company does not elect a Settlement Method ~~with respect to a Conversion Date~~ prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or ~~Combination~~ Physical Settlement with respect to any conversion on such Conversion ~~Date~~Date or during such period, and the Company shall be deemed to have elected ~~Physical~~ 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~~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~~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 all Holders, the Company may, prior to June 15, 2025, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 for all Conversion Dates occurring subsequent to delivery of such notice. (iv) The cash, shares of Common ~~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 ~~(or is deemed to have elected)~~ to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of 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 20 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, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 20 30 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 ~~Shares~~Stock, the Company shall notify the ~~U.S.~~ Trustee and the Conversion Agent (if other than the ~~U.S.~~ 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 ~~U.S.~~ Trustee and the Conversion Agent (if other than the ~~U.S.~~ Trustee) shall have no responsibility for any such determination. (b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a ~~Definitive~~ Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common ~~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 14.02(h). The ~~U.S.~~ Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~15.03(a)~~15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (ib) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical ~~Settlement~~Settlement (provided that, with respect to any Conversion Date following the Regular Record Date immediately preceding the Maturity Date where Physical Settlement applies to the related conversion, the Company shall settle any such conversion on the Maturity Date), or 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 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 book-entry format through the Depositary~~, in the case of Global Notes, or in certificated form, in the case of Definitive Notes, in each case~~, in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the ~~U.S.~~ Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount 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 ~~U.S.~~ Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different 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 ~~issuance~~ 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 ~~U.S.~~ Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common ~~Shares~~ Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the ~~U.S.~~ Trustee, or the Custodian at the direction of the ~~U.S.~~ Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the ~~U.S.~~ Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the ~~U.S.~~ Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes 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 the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date 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 ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (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 shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Samples: Indenture (Splunk Inc)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying or 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 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 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02. (i) All conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Notice of Redemption with respect to the Notes and prior to the related Redemption Date, and all conversions for which the relevant Conversion Date occurs on or after ~~January 15~~, ~~2023~~2024, 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 Notice of Redemption with respect to the Notes but prior to the related Redemption Date, and any conversions for which the relevant Conversion Date occurs on or after ~~January 15~~, ~~2023~~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 any conversions for which the relevant Conversion Date occurs ~~during~~ after the Company’s issuance of a Notice of Redemption ~~Period~~with respect to the Notes and prior to the related Redemption Date, or for which the relevant Conversion Date occurs on or after ~~January 15~~, ~~2023~~2024), 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 ~~U.S.~~ Trustee, shall deliver such Settlement Notice ~~in writing~~ to converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs (x) ~~during~~ after the date of issuance of a Notice of Redemption ~~Period~~with respect to the Notes and prior to the related Redemption Date, in such Notice of ~~Redemption,~~ Redemption or (y) on or after ~~January 15~~, ~~2023~~2024, no later than ~~January 15~~the close of business on the Scheduled Trading Day immediately preceding , ~~2023~~2024). If the Company does not elect a Settlement Method ~~with respect to a Conversion Date~~ prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or ~~Combination~~ Physical Settlement with respect to any conversion on such Conversion ~~Date~~Date or during such period, and the Company shall be deemed to have elected ~~Physical~~ 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~~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~~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 all Holders, the Company may, prior to , 2024, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 for all Conversion Dates occurring subsequent to delivery of such notice. (iv) The cash, shares of Common ~~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 ~~(or is deemed to have elected)~~ to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of 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 20 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 20 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 ~~Shares~~Stock, the Company shall notify the ~~U.S.~~ Trustee and the Conversion Agent (if other than the ~~U.S.~~ 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 ~~U.S.~~ Trustee and the Conversion Agent (if other than the ~~U.S.~~ Trustee) shall have no responsibility for any such determination. (b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a ~~Definitive~~ Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common ~~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 14.02(h). The ~~U.S.~~ Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~15.03(a)~~15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (ib) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical ~~Settlement~~Settlement (provided that, with respect to any Conversion Date following the Regular Record Date immediately preceding the Maturity Date where Physical Settlement applies to the related conversion, the Company shall settle any such conversion on the Maturity Date), or 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 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 book-entry format through the Depositary~~, in the case of Global Notes, or in certificated form, in the case of Definitive Notes, in each case~~, in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the ~~U.S.~~ Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount 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 ~~U.S.~~ Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different 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 ~~issuance~~ 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 ~~U.S.~~ Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common ~~Shares~~ Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the ~~U.S.~~ Trustee, or the Custodian at the direction of the ~~U.S.~~ Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the ~~U.S.~~ Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the ~~U.S.~~ Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth ~~below~~in this Section 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 not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common ~~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 the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts ~~exists~~ exist at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date 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 ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (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 shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Samples: Indenture (Veoneer, Inc.)

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