Exchange Procedure; Settlement Upon Exchange. (a) Subject to Section 14.01(c), this Section 14.02 and Section 14.07(a), upon exchange of any Note, the Company shall, at its election, pay or deliver, as the case may be, to the exchanging Holder, in respect of each $1,000 of principal of and accrued but unpaid interest on the Notes being exchanged, cash (“Cash Settlement”), Ordinary Shares, together with cash, if applicable, in lieu of delivering any fractional Ordinary Share in accordance with subsection (i) of this Section 14.02 (“Physical Settlement”) or a combination of cash and Ordinary Shares, together with cash, if applicable, in lieu of delivering any fractional Ordinary Share in accordance with subsection (i) of this Section 14.02 (“Combination Settlement”), as set forth in this Section 14.02. (i) All exchanges for which the relevant Exchange Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date, and all exchanges for which the relevant Exchange Date occurs on or after October 31, 2024, shall be settled using the same Settlement Method. (ii) Except for any exchanges for which the relevant Exchange Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes but prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date, and any exchanges for which the relevant Exchange Date occurs on or after October 31, 2024, the Company shall use the same Settlement Method for all exchanges with the same Exchange Date, but the Company shall not have any obligation to use the same Settlement Method with respect to exchanges that occur on different Exchange Dates. (iii) If, in respect of any Exchange Date (or the period described in the fourth immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a written notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Exchange Date (or such period, as the case may be), the Company shall deliver such Settlement Notice to exchanging Holders (with a copy to the Trustee and Exchange Agent) no later than the close of business on the Trading Day immediately following the relevant Exchange Date (or, in the case of any exchanges of any Notes for which the relevant Exchange Date occurs (A) on or after the date of issuance of a Redemption Notice with respect to the Notes and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date in such Redemption Notice or (B) on or after October 31, 2024, no later than the close of business on the Business Day immediately preceding October 31, 2024); provided, however, that with respect to a Mandatory Exchange, the Mandatory Exchange Notice shall constitute the Settlement Notice. 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 Exchange Obligation, and the Specified Dollar Amount per $1,000 of principal of and accrued but unpaid interest on the Notes being exchanged shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 of principal of and accrued but unpaid interest on the Notes being exchanged. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Exchange Obligation but does not indicate a Specified Dollar Amount per $1,000 of principal of and accrued but unpaid interest on the Notes being exchanged in such Settlement Notice, the Specified Dollar Amount per $1,000 of principal of and accrued but unpaid interest on the Notes being exchanged shall be deemed to be $1,000. (iv) The cash, Ordinary Shares or combination of cash and Ordinary Shares in respect of any exchange of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Exchange Obligation in respect of such exchange by Physical Settlement, the Company shall cause to be delivered to the exchanging Holder in respect of each $1,000 of principal of and accrued but unpaid interest on the Notes being exchanged a number of Ordinary Shares equal to the Exchange Rate in effect on the Exchange Date; (B) if the Company elects to satisfy its Exchange Obligation in respect of such exchange by Cash Settlement, the Company shall pay to the exchanging Holder in respect of each $1,000 of principal of and accrued but unpaid interest on the Notes being exchanged cash in an amount equal to the sum of the Daily Exchange Values for each of the 30 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Exchange Obligation in respect of such exchange by Combination Settlement, the Company shall pay or cause to be delivered, as the case may be, in respect of each $1,000 of principal of and accrued but unpaid interest on the Notes being exchanged, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 30 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Exchange 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 Exchange Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional Ordinary Share, the Company shall notify the Trustee and the Exchange Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Exchange Values, as the case may be, and the amount of cash payable in lieu of delivering fractional Ordinary Shares. The Trustee and the Exchange Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to exchange a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Exchange Agent as set forth in the Form of Notice of Exchange (or a facsimile thereof) (a “Notice of Exchange”) at the Corporate Trust Office or the office of the Exchange Agent (if other than the Trustee) and state in writing therein the principal amount of Notes to be exchanged and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any Ordinary Shares to be delivered upon settlement of the Exchange Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the Corporate Trust Office or the office of the Exchange Agent (if other than the Trustee), (3) if required, furnish appropriate endorsements and transfer documents and (4) with respect to any exchange by a Holder of a Specified Note, provide the Company, Iterum and the Trustee with any certifications, representations and other documentation reasonably requested by the Company, Iterum or the Trustee to demonstrate the Holder’s compliance with Section 14.01(c); provided, however, that the Notice of Exchange in clause (1) shall not be required in the case of a Mandatory Exchange. The Trustee (and, if different, the Exchange Agent) shall notify the Company of any voluntary exchange pursuant to this Article 14 on the Exchange Date for such exchange. No Notice of Exchange with respect to any Notes may be surrendered by a Holder thereof if (i) 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 or (ii) the Company has delivered a Mandatory Exchange Notice. If more than one Note shall be surrendered for exchange at one time by the same Holder, the Exchange Obligation with respect to such Notes shall be computed on the basis of the aggregate of principal of and accrued but unpaid interest on the Notes so surrendered (or specified portions thereof to the extent permitted thereby). (c) A Note shall be deemed to have been exchanged immediately prior to the close of business on the date (the “Exchange Date”) that the Holder has complied with the requirements set forth in subsection (b) above (or, in the case of a Mandatory Exchange, the Exchange Date set forth in the Mandatory Exchange Notice). Except as provided in Section 14.07(a), the Company shall pay or cause to be delivered, as the case may be, the consideration due in respect of the Exchange Obligation (i) on the second Business Day immediately following the relevant Exchange Date, if the Company elects to use Physical Settlement, or (ii) on the second Business Day immediately following the last Trading Day of the relevant Observation Period, in the case of any other Settlement Method (the “Exchange Settlement Date”). Subject to Section 14.01(c), if any Ordinary Shares are due to exchanging Holders, the Company shall issue or cause to be issued, and deliver to the Exchange 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 Ordinary Shares to which such Holder shall be entitled in satisfaction of the Company’s Exchange Obligation. (d) In case any Note shall be surrendered for partial exchange, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unexchanged portion of the surrendered Note, without payment of any service charge by the exchanging Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such exchange being different from the name of the Holder of the old Notes surrendered for such exchange. (e) If a Holder submits a Note for exchange, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issuance of any Ordinary Shares upon exchange, 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 Exchange Agent may refuse to deliver the certificates representing the Ordinary Shares being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Upon the exchange of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any exchange of Notes effected through any Exchange Agent other than the Trustee. (g) Upon exchange, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any. The Company’s settlement of the full Exchange Obligation shall be 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 Exchange Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Exchange Date shall be deemed to be paid in full rather than canceled, extinguished or forfeited. Upon an exchange of Notes for a combination of cash and Ordinary Shares, any accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such exchange. (h) The Person in whose name the certificate for any Ordinary Shares delivered upon exchange is registered shall be treated as a shareholder of record as of the close of business on the relevant Exchange Date (if the exchange is settled by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Exchange Obligation by Combination Settlement), as the case may be. Upon an exchange of Notes, such Person shall no longer be a Holder of such Notes surrendered for exchange. (i) The Company shall not issue any fractional Ordinary Share upon exchange of the Notes and shall instead pay cash in lieu of delivering any fractional Ordinary Share issuable upon exchange based on the Daily VWAP on the relevant Exchange Date (in the case of Physical Settlement) or based on the Daily VWAP on the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for exchange, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be issued upon exchange 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 (Iterum Therapeutics PLC), Indenture (Iterum Therapeutics PLC)
Exchange Procedure; Settlement Upon Exchange. (a) Subject to Section 14.01(c), this Section 14.02 and Section 14.07(a), upon Upon the exchange of any Note, the Company shall, at its election, pay will settle such exchange by paying or deliverdelivering, as the case may beapplicable and as provided in this Article 8, to the exchanging Holdereither (x) Ordinary Shares, together, if applicable, with cash in respect lieu of each $1,000 of principal of and accrued but unpaid interest on the Notes being exchanged, fractional shares as provided in Section 8.02(b)(i) (a “Physical Settlement”); (y) solely cash as provided in Section 8.02(b)(ii) (a “Cash Settlement”), Ordinary Shares, together with cash, if applicable, in lieu of delivering any fractional Ordinary Share in accordance with subsection ; or (iz) of this Section 14.02 (“Physical Settlement”) or a combination of cash and Ordinary Shares, together with cashtogether, if applicable, with cash in lieu of delivering any fractional Ordinary Share shares as provided in accordance with subsection Section 8.02(b)(iii) (i) of this Section 14.02 (a “Combination Settlement”). The Company will have the right to elect the Settlement Method applicable to any exchange of a Note; provided, as set forth in this Section 14.02.however, that:
(i) All subject to clause (iii) below, all exchanges for which the relevant of Notes with an Exchange Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date, and all exchanges for which the relevant Exchange Date that occurs on or after October 31January 1, 2024, shall 2021 will be settled using the same Settlement Method., and the Company will provide notice of such Settlement Method to Holders and the Trustee no later than the Close of Business on January 1, 2021;
(ii) Except for any exchanges for which subject to clause (iii) below, if the relevant Exchange Date occurs after the Company’s issuance of Company elects a Redemption Notice Settlement Method with respect to the Notes but prior exchange of any Note whose Exchange Date occurs before January 1, 2021, then the Company will provide notice of such Settlement Method to the close Holder of business such Note and the Trustee no later than the Close of Business on the second Scheduled Trading (2nd) Business Day immediately preceding after such Exchange Date;
(iii) if any Notes are called for Redemption, then the Company will specify in the related Redemption Notice the Settlement Method that will apply to all exchanges of Notes with an Exchange Date that occurs on or after the related Redemption Notice Date and before the related Redemption Date, and any exchanges for which the relevant Exchange Date occurs on or after October 31, 2024, ;
(iv) the Company shall will use the same Settlement Method for all exchanges of Notes with an Exchange Date that occurs on the same Exchange Dateday (and, but for the avoidance of doubt, the Company shall will not have any obligation be obligated to use the same Settlement Method with respect to exchanges that of Notes whose Exchange Dates occur on different Exchange Dates.
days, except as provided in clause (i) or (iii) If, in respect of any Exchange Date above);
(or the period described in the fourth immediately succeeding set of parentheses, as the case may be), v) if the Company elects to deliver does not timely elect a written notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Exchange Date (or such period, as the case may be), the Company shall deliver such Settlement Notice to exchanging Holders (with a copy to the Trustee and Exchange Agent) no later than the close of business on the Trading Day immediately following the relevant Exchange Date (or, in the case of any exchanges of any Notes for which the relevant Exchange Date occurs (A) on or after the date of issuance of a Redemption Notice with respect to the Notes and prior to the close exchange of business on the second Scheduled Trading Day immediately preceding the related Redemption Date in such Redemption Notice or (B) on or after October 31a Note, 2024, no later than the close of business on the Business Day immediately preceding October 31, 2024); provided, however, that with respect to a Mandatory Exchange, the Mandatory Exchange Notice shall constitute the Settlement Notice. If then 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 will be deemed to have elected the Default Settlement Method (and, for the avoidance of doubt, the failure to timely make such election will not constitute a Default or Event of Default);
(vi) if the Company timely elects Combination Settlement in with respect to the exchange of its Exchange Obligationa Note but does not timely notify the Holder of such Note of the applicable Specified Dollar Amount, and then the Specified Dollar Amount per $1,000 of principal of and accrued but unpaid interest on the Notes being exchanged shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 of principal of and accrued but unpaid interest on the Notes being exchanged. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Exchange Obligation but does not indicate a Specified Dollar Amount per $1,000 of principal of and accrued but unpaid interest on the Notes being exchanged in for such Settlement Notice, the Specified Dollar Amount per $1,000 of principal of and accrued but unpaid interest on the Notes being exchanged shall exchange will be deemed to be $1,0001,000 per $1,000 principal amount of Notes (and, for the avoidance of doubt, the failure to timely make such notification will not constitute a Default or Event of Default); and
(vii) the Settlement Method will be subject to Section 8.06.
(ivb) The cash, Ordinary Shares or combination type and amount of cash and Ordinary Shares in respect of any exchange of Notes consideration (the “Settlement AmountExchange Consideration”) shall be computed as follows:
(A) if the Company elects to satisfy its Exchange Obligation in respect of such exchange by Physical Settlement, the Company shall cause to be delivered to the exchanging Holder due in respect of each $1,000 principal amount of principal of and accrued but unpaid interest on the Notes being a Note to be exchanged will be as follows:
(i) If Physical Settlement applies to such exchange, subject to Section 8.02(b)(ii), a number of Ordinary Shares equal to the Exchange Rate in effect on the Exchange Date;Date for such exchange.
(Bii) if the Company elects If Cash Settlement applies to satisfy its Exchange Obligation in respect of such exchange by Cash Settlementexchange, the Company shall pay to the exchanging Holder in respect of each $1,000 of principal of and accrued but unpaid interest on the Notes being exchanged cash in an amount equal to the sum of the Daily Exchange Values for each VWAP Trading Day in the Observation Period for such exchange.
(iii) If Combination Settlement applies to such exchange, consideration consisting of the 30 consecutive Daily Settlement Amount for each VWAP Trading Days during Day in such Observation Period.
(iv) If Physical Settlement or Combination Settlement applies to the exchange of any Note and the number of Ordinary Shares deliverable pursuant Section 8.02(b)(i) or Section 8.02(b)(iii), as applicable, upon such exchange is not a whole number, then such number will be rounded down to the nearest whole number and the Company will deliver, in addition to the other consideration due upon such exchange, cash in lieu of the related fractional share in an amount equal to the product of (1) such fraction and (2) (x) the Daily VWAP on the Exchange Date for such exchange (or, if such Exchange Date is not a VWAP Trading Day, the immediately preceding VWAP Trading Day), in the case of Physical Settlement; or (y) the Daily VWAP on the last VWAP Trading Day of the Observation Period; andPeriod for such exchange, in the case of Combination Settlement.
(Cv) if If a Holder exchanges more than one (1) Note on a single Exchange Date, then the Company elects (or is deemed to have elected) to satisfy its Exchange Obligation Consideration due in respect of such exchange by Combination Settlementwill (in the case of any Global Note, to the extent permitted by, and practicable under, the Company shall pay or cause to Depositary Procedures) be delivered, as the case may be, in respect of each $1,000 of principal of and accrued but unpaid interest computed based on the total principal amount of Notes being exchanged, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 30 consecutive Trading Days during the related Observation Periodexchanged on such Exchange Date by such Holder.
(vc) The Daily Settlement Amounts (if applicable) and the Daily Exchange 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 Exchange Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional Ordinary ShareTo convert a Note, the Company shall notify the Trustee and the Exchange Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Exchange Values, as the case may be, and the amount of cash payable in lieu of delivering fractional Ordinary Shares. The Trustee and the Exchange Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to exchange a Note as set forth above, such Holder thereof shall (i) in the case of if such Note is a Global Note, comply with the procedures of the Depositary in effect at that time and Procedures for exchanging such beneficial interest; (ii) in the case of if such Note is a Physical Note; (ii) if such Note is a Physical Note, (1) complete, complete and manually sign the Notice of Exchange attached to such Physical Note, or a facsimile of the Notice of Exchange; (2) deliver the completed exchange notice, which is irrevocable, and deliver an irrevocable notice the Physical Note to the Exchange Agent as set forth in the Form of Notice of Exchange (or a facsimile thereof) (a “Notice of Exchange”) at the Corporate Trust Office or the office of the Exchange Agent (if other than the Trustee) Agent; and state in writing therein the principal amount of Notes to be exchanged and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any Ordinary Shares to be delivered upon settlement of the Exchange Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the Corporate Trust Office or the office of the Exchange Agent (if other than the Trustee), (3) if required, furnish any appropriate endorsements and transfer documents documents; (iii) if required, pay any amounts due pursuant to Section 8.02(i); and (4iv) with respect to any exchange by a Holder of a Specified Noteif required, provide the Companypay all taxes or duties, Iterum and the Trustee with any certifications, representations and other documentation reasonably requested by the Company, Iterum or the Trustee to demonstrate the Holder’s compliance with Section 14.01(c); provided, however, that the Notice of Exchange in clause (1) shall not be required in the case of a Mandatory Exchangeif any. The Trustee (and, if different, the Exchange Agent) shall notify the Company of any voluntary communication from the Depositary regarding an exchange pursuant to this Article 14 on (in the Exchange Date for such exchange. No Notice case of Exchange with respect to any Notes may be surrendered by a Holder thereof if clause (i) such above) or receipt of any exchange-related document (in the case of clause (ii) above), in each case promptly and, in any event, no later than the Business Day immediately following the date the Trustee or Exchange Agent, as the case may be, receives the same. If a Holder has also validly delivered a Fundamental Change Repurchase Notice with respect to a Note, then such Note may not be exchanged, except to the Company in respect of extent (x) such Notes and has Note is not validly subject to such notice; (y) such notice is withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03 9.01(e)(iii) or (iiz) the Company has delivered a Mandatory Exchange Notice. If more than one Note shall be surrendered fails to pay the related Fundamental Change Repurchase Price for exchange at one time by the same Holder, the Exchange Obligation with respect to such Notes shall be computed on the basis of the aggregate of principal of and accrued but unpaid interest on the Notes so surrendered (or specified portions thereof to the extent permitted thereby)Note.
(cd) A Note shall be deemed to have been exchanged immediately prior to the close Close of business Business on the date (the “Exchange Date”) that the Holder has complied with the requirements set forth in subsection (bc) above (or, in the case of a Mandatory Exchange, the Exchange Date set forth in the Mandatory Exchange Notice)above. Except as provided in Section 14.07(a)8.03 and Section 8.06, the Company shall will pay or cause to be delivereddeliver, as the case may beapplicable, the consideration Exchange Consideration due in respect upon the exchange of any Note to the Exchange Obligation Holder as follows: (i) if Cash Settlement or Combination Settlement applies to such exchange, on or before the second third (3rd) Business Day immediately following the relevant Exchange Date, if the Company elects to use Physical Settlement, or (ii) on the second Business Day immediately following after the last VWAP Trading Day of the relevant Observation PeriodPeriod for such exchange; and (ii) if Physical Settlement applies to such exchange, on or before the third (3rd) Business Day immediately after the Exchange Date for such exchange; provided, however, that the Company will pay or deliver, as applicable, the Exchange Consideration due upon the exchange of any Note with an Exchange Date after the Regular Record Date immediately before the Maturity no later than the Maturity Date. The Company shall cause the Parent to issue and deliver any Ordinary Shares due upon settlement of the exchange of any Note. The Company shall pay-up the Ordinary Shares, or procure that the Ordinary Shares are paid-up by another non-Irish subsidiary of the Parent, in full in cash, including, if applicable, any additional paid in capital (so as to be validly issued for the case purposes of any other Settlement Method (the “Exchange Settlement Date”requirements of the Irish Companies Act 2014). Subject If, for any reason the Company is legally prohibited from paying-up the Ordinary Shares in full to Section 14.01(cat least their nominal value (for example, upon certain events of bankruptcy, insolvency or examinership), if exchanging Holders shall be entitled to pay the nominal value per share ($0.001) in cash, and, in such circumstances, subject to receipt of such payment, the Parent shall issue the Ordinary Shares fully paid to that amount and exchanging Holders shall receive validly issued ordinary Shares. If any Ordinary Shares are due to exchanging Holders, the Company shall issue or cause to be issuedissued by its stock transfer agent, and deliver to the Exchange 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 Ordinary Shares to which such Holder shall be entitled in satisfaction of the Company’s Exchange Obligation. Prior to the issuance of Ordinary Shares, the Company shall give the Exchange Agent notice of the number of Ordinary Shares being so issued and the method by which the issuance shall take place. Any required funds due to an exchanging Holder in connection with a Cash Settlement or Combination Settlement shall be delivered to the Paying Agent. For the avoidance of doubt, neither the Exchange Agent nor the Trustee shall have any responsibility for the issuance by the Company of Ordinary Shares.
(de) In case If any Physical Note shall be is surrendered for partial exchange, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the such Note so surrendered a new Note or Notes in authorized denominations Authorized Denominations in an aggregate principal amount equal to the unexchanged un-exchanged portion of the surrendered such Note, without payment of any service charge by the exchanging Holder but, if required by the Company or TrusteeCompany, with payment by the exchanging Holder of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such exchange being different from the name of the Holder of the old Notes surrendered for such exchange.
(ef) If a Holder submits a Note for exchange, the Company Company, but not the Parent (and, to such extent, the Guarantee of the Parent shall not apply), shall pay any documentary, stamp or similar issue or transfer tax or similar governmental charge due on the issuance issue of any Ordinary Shares upon exchange, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Company (or, if the stock certificates are delivered by the Company to the Exchange Agent for further delivery to the exchanging Holder, the Exchange Agent) may refuse to deliver the certificates representing (or cause the book-entry transfer of) the Ordinary Shares being issued in a name other than the Holder’s name until the Trustee Company receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(fg) Except as provided in Section 8.04, no adjustment shall be made for dividends on any Ordinary Shares issued upon the exchange of any Note.
(h) Upon the exchange of an interest in a Note that is a Global Note, the Trustee, or the Custodian at the direction of the Trustee, Trustee shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any exchange of Notes effected through any Exchange Agent other than the Trustee.
(gi) Upon Notwithstanding the foregoing, if the Exchange Date of a Note is after a Regular Record Date and before the next Interest Payment Date, then (i) the Holder of such Note at the Close of Business on such Regular Record Date will be entitled, notwithstanding such exchange (and, for the avoidance of doubt, notwithstanding anything set forth in the proviso to this sentence), to receive, on the earlier of such Interest Payment Date and the date the Company delivers the Exchange Consideration due in respect of such exchange, the unpaid interest that would have accrued on such Note to, but excluding, such Interest Payment Date (assuming, solely for these purposes, that such Note remained outstanding through such Interest Payment Date); and (ii) such Note, when surrendered for exchange, must be accompanied with an amount of cash equal to the amount of such interest referred to in clause (i) above; provided, however, that such Holder need not deliver such cash (w) if the Company has specified a Redemption Date that is after such Regular Record Date and on or before the Business Day immediately after such Interest Payment Date; (x) if such Exchange Date occurs after the Regular Record Date immediately before the Maturity Date; (y) if the Company has specified a Fundamental Change Repurchase Date that is after such Regular Record Date and on or before such Interest Payment Date or (z) to the extent of any overdue interest or interest that has accrued on any overdue interest. For the avoidance of doubt, as a result of, and without limiting the generality of, the foregoing, if a Note is exchanged with an Exchange Date that is after the Regular Record Date immediately before the Maturity Date, then the Company will pay, as provided above, the interest that would have accrued on such Note to, but excluding, the Maturity Date.
(j) The person in whose name any Ordinary Shares issuable upon exchange of any Note will be deemed to become the holder of record of such shares as of the Close of Business on (i) the applicable Exchange Date, in the case of Physical Settlement; or (ii) the last VWAP Trading Day of the Observation Period for such exchange, in the case of Combination Settlement. Prior to the Close of Business on such Exchange Date or last VWAP Trading Day, as applicable, the Ordinary Shares, if any, issuable upon exchange of such Notes will not be deemed to be outstanding for any purpose and such Holder shall have no rights with respect to such Ordinary Shares by virtue of holding the Notes, including voting rights in the Parent, rights to respond to tender offers and rights to receive any dividends or other distributions on the Ordinary Shares.
(k) If a Holder shall exchanges a Note, then the Company will not receive adjust the Exchange Rate to account for any separate cash payment for accrued and unpaid interestinterest on such Note, if any. The and, except as provided in Section 8.02(i), the Company’s settlement delivery of the full Exchange Obligation shall Consideration due in respect of such exchange will be deemed to fully satisfy in full its and discharge the Company’s obligation to pay the principal amount of the Note of, and accrued and unpaid interest, if any, on, such Note to, but not including, excluding the relevant Exchange Date. As a result, except as provided in Section 8.02(i), any accrued and unpaid interest, if any, to, but not including, the relevant Exchange Date shall interest on an exchanged Note will be deemed to be paid in full rather than canceledcancelled, extinguished or forfeited. Upon an exchange of Notes In addition, subject to Section 8.02(i), if the Exchange Consideration for a combination Note consists of both cash and Ordinary Shares, any then accrued and unpaid interest that is deemed to be paid therewith will be deemed to be paid first out of the cash paid upon such exchangecash.
(hl) The Person Notwithstanding anything to the contrary in whose name the certificate for any Ordinary Shares delivered upon exchange is registered shall be treated as a shareholder of record as of the close of business on the relevant Exchange Date (if the exchange is settled by Physical Settlement) Indenture or the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Exchange Obligation by Combination Settlement), as the case may be. Upon an exchange of Notes, such Person shall no longer Notes may be a Holder of such Notes surrendered for exchangeexchanged only in Authorized Denomination.
(i) The Company shall not issue any fractional Ordinary Share upon exchange of the Notes and shall instead pay cash in lieu of delivering any fractional Ordinary Share issuable upon exchange based on the Daily VWAP on the relevant Exchange Date (in the case of Physical Settlement) or based on the Daily VWAP on the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for exchange, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be issued upon exchange 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: Ninth Supplemental Indenture (Weatherford International PLC)
Exchange Procedure; Settlement Upon Exchange. (a) Subject to Section 14.01(c), this Section 14.02 14.02, Section 14.03(b) and Section 14.07(a), upon exchange of any Note, the Company shall, at its election, pay or deliver, as the case may be, to the exchanging Holder, in respect full satisfaction of each $1,000 of principal of and accrued but unpaid interest on the Notes being exchangedits Exchange Obligation, cash (“Cash Settlement”), Ordinary Shares, together with cash, if applicable, in lieu of delivering any fractional Ordinary Share in accordance with subsection (i) of this Section 14.02 ADSs (“Physical Settlement”) or a combination of cash and Ordinary Shares, together with cash, if applicable, in lieu of delivering any fractional Ordinary Share in accordance with subsection (i) of this Section 14.02 ADSs (“Combination Settlement”), as set forth in this Section 14.02.
(i) All exchanges for which the relevant Exchange Date occurs on or after September 15, 2023, and all exchanges occurring after the date of the Company’s issuance of a Notice of Tax Redemption Notice with respect to the Notes and prior to the close of business on the second Scheduled Trading Business Day immediately preceding the related Tax Redemption Date, and all exchanges for which the relevant Exchange Date occurs on or after October 31, 2024, shall be settled using the same Settlement Method.
Method (ii) including the same relative proportion of cash and/or ADSs). Except for any exchanges for which the relevant Exchange Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes but prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date, and any exchanges for which the relevant Exchange Date occurs on or after October 31September 15, 20242023, or after the date of the Company’s issuance of a Notice of Tax Redemption and prior to the close of business on the second Business Day immediately preceding the related Tax Redemption Date, the Company shall use the same Settlement Method (including the same relative proportion of cash and/or ADSs) for all exchanges with the same Exchange Date, but the Company shall not have any obligation to use the same Settlement Method with respect to exchanges that occur on with different Exchange Dates.
(iiiii) If, in respect of any Exchange Date (or the period described in the fourth immediately succeeding set of parentheses, as the case may be), If the Company elects to deliver a written notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Exchange Date (or such period, as the case may be)Method, the Company shall deliver notice to Holders through the Exchange Agent of such Settlement Notice to exchanging Holders (with a copy to Method the Trustee and Exchange Agent) Company has selected no later than the close of business on the second Trading Day immediately following the relevant related Exchange Date (or, or (i) in the case of any exchanges of any Notes for which the relevant Exchange Date occurs (A) on or after September 15, 2023, no later than September 15, 2023 or (ii) in the case of any exchanges occurring after the date of issuance of a Notice of Tax Redemption Notice with respect to the Notes and prior to the close of business on the second Scheduled Trading Business Day immediately preceding the related Tax Redemption Date Date, in such Redemption Notice or (B) on or after October 31, 2024, no later than the close of business on the Business Day immediately preceding October 31, 2024Tax Redemption); provided, however, that with respect to a Mandatory Exchange, the Mandatory Exchange Notice shall constitute the Settlement Notice. If the Company does not timely elect a Settlement Method prior to the deadline set forth in the immediately preceding sentenceMethod, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to that Exchange Date and the Company shall be deemed to have elected Combination Settlement in respect of its Exchange Obligation, and the Specified Dollar Amount per $1,000 principal amount of principal of and accrued but unpaid interest on the Notes being exchanged shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 of principal of and accrued but unpaid interest on the Notes being exchanged. If the Company delivers a Settlement Notice electing elects Combination Settlement in respect of its Exchange Obligation any exchange but does not indicate specify in its election a Specified Dollar Amount per $1,000 principal amount of principal of and accrued but unpaid interest on Notes, or the Notes being exchanged in such Settlement NoticeCompany is deemed to have elected Combination Settlement, the Specified Dollar Amount per $1,000 of principal of and accrued but unpaid interest on the Notes being exchanged shall be deemed to be $1,000.
(iviii) The cash, Ordinary Shares ADSs or combination of cash and Ordinary Shares ADSs payable or deliverable by the Company in respect of any exchange of Notes (the “Settlement Amount”) shall be computed by the Company as follows:
(A) if the Company elects to satisfy its Exchange Obligation in respect of such exchange by Physical Settlement, the Company shall cause to be delivered deliver to the exchanging Holder in respect of each $1,000 principal amount of principal of and accrued but unpaid interest on the Notes being exchanged a number of Ordinary Shares ADSs equal to the Exchange Rate in effect on the Exchange DateDate (plus cash in lieu of any fractional ADS deliverable upon exchange);
(B) if the Company elects to satisfy its Exchange Obligation in respect of such exchange by Cash Settlement, the Company shall pay to the exchanging Holder in respect of each $1,000 principal amount of principal of and accrued but unpaid interest on the Notes being exchanged cash in an amount equal to the sum of the Daily Exchange Values for each of the 30 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 Exchange Obligation in respect of such exchange by Combination Settlement, the Company shall pay or cause to be delivereddeliver, as the case may be, to the exchanging Holder in respect of each $1,000 principal amount of principal of and accrued but unpaid interest on the Notes being exchanged, exchanged a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 30 60 consecutive VWAP Trading Days during the related Observation PeriodPeriod (plus cash in lieu of any fractional ADS deliverable upon exchange). If more than one Note shall be surrendered for exchange at any one time by the same Holder, the Exchange Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted hereby) so surrendered.
(viv) The Daily Settlement Amounts (if applicable) and the Daily Exchange Values (if applicable) shall be determined by the Company promptly following the last day VWAP Trading Day of the related Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Exchange Values, as the case may be, and and, if applicable, the amount of cash payable in lieu of delivering any fractional Ordinary ShareADS, the Company shall notify the Trustee and the Exchange Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Exchange Values, as the case may be, and and, if applicable, the amount of cash payable in lieu of delivering fractional Ordinary SharesADSs. The Trustee and the Exchange Agent (if other than the Trustee) shall have no responsibility for any such determination.
(bi) Subject to Section 14.02(eTo exchange a beneficial interest in a Global Note (which exchange is irrevocable), before any Holder the holder of a Note shall be entitled to exchange a Note as set forth above, such Holder shall beneficial interest must:
(iA) in the case of a Global Note, comply with the procedures Applicable Procedures;
(B) if applicable, pay a fee of up to $0.05 per ADS, if any, deliverable upon such exchange, as well as any applicable fees, costs and expenses prescribed under the Depositary in effect at that time and Deposit Agreement;
(iiC) in if required, pay all transfer or similar taxes; and
(D) if required, pay funds equal to any interest payable on the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice next Interest Payment Date to the Exchange Agent which such Holder is not entitled as set forth in the Form of Notice of Exchange (or a facsimile thereof) (a “Notice of Exchange”) at the Corporate Trust Office or the office of the Exchange Agent (if other than the Trustee) and state in writing therein the principal amount of Notes to be exchanged and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any Ordinary Shares to be delivered upon settlement of the Exchange Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the Corporate Trust Office or the office of the Exchange Agent (if other than the Trustee), (3) if required, furnish appropriate endorsements and transfer documents and (4) with respect to any exchange by a Holder of a Specified Note, provide the Company, Iterum and the Trustee with any certifications, representations and other documentation reasonably requested by the Company, Iterum or the Trustee to demonstrate the Holder’s compliance with Section 14.01(c14.02(g); provided, however, that the Notice of Exchange in clause (1) shall not be required in the case of a Mandatory Exchange. The Trustee (and, if different, the Exchange Agent) shall notify the Company of any voluntary exchange pursuant to this Article 14 on the Exchange Date for such exchange. No Notice of Exchange with respect to any Notes may be surrendered by a Holder thereof if (i) 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 or (ii) the Company has delivered a Mandatory Exchange Notice. If more than one Note shall be surrendered for exchange at one time by the same Holder, the Exchange Obligation with respect to such Notes shall be computed on the basis of the aggregate of principal of and accrued but unpaid interest on the Notes so surrendered (or specified portions thereof to the extent permitted thereby).
(c) A Note shall be deemed to have been exchanged immediately prior to the close of business on the date (the “Exchange Date”) that the Holder has complied with the requirements set forth in subsection (b) above (or, in the case of a Mandatory Exchange, the Exchange Date set forth in the Mandatory Exchange Notice). Except as provided in Section 14.07(a), the Company shall pay or cause to be delivered, as the case may be, the consideration due in respect of the Exchange Obligation (i) on the second Business Day immediately following the relevant Exchange Date, if the Company elects to use Physical Settlement, or (ii) on the second Business Day immediately following the last Trading Day of the relevant Observation Period, in the case of any other Settlement Method (the “Exchange Settlement Date”). Subject to Section 14.01(c), if any Ordinary Shares are due to exchanging Holders, the Company shall issue or cause to be issued, and deliver to the Exchange 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 Ordinary Shares to which such Holder shall be entitled in satisfaction of the Company’s Exchange Obligation.
(d) In case any Note shall be surrendered for partial exchange, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unexchanged portion of the surrendered Note, without payment of any service charge by the exchanging Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such exchange being different from the name of the Holder of the old Notes surrendered for such exchange.
(e) If a Holder submits a Note for exchange, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issuance of any Ordinary Shares upon exchange, 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 Exchange Agent may refuse to deliver the certificates representing the Ordinary Shares being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Upon the exchange of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any exchange of Notes effected through any Exchange Agent other than the Trustee.
(g) Upon exchange, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any. The Company’s settlement of the full Exchange Obligation shall be 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 Exchange Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Exchange Date shall be deemed to be paid in full rather than canceled, extinguished or forfeited. Upon an exchange of Notes for a combination of cash and Ordinary Shares, any accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such exchange.
(h) The Person in whose name the certificate for any Ordinary Shares delivered upon exchange is registered shall be treated as a shareholder of record as of the close of business on the relevant Exchange Date (if the exchange is settled by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Exchange Obligation by Combination Settlement), as the case may be. Upon an exchange of Notes, such Person shall no longer be a Holder of such Notes surrendered for exchange.
(i) The Company shall not issue any fractional Ordinary Share upon exchange of the Notes and shall instead pay cash in lieu of delivering any fractional Ordinary Share issuable upon exchange based on the Daily VWAP on the relevant Exchange Date (in the case of Physical Settlement) or based on the Daily VWAP on the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for exchange, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be issued upon exchange 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 (NICE Ltd.)
Exchange Procedure; Settlement Upon Exchange. (a) Subject to this Section 14.01(c14.02, Section 14.01(b)(ii), this Section 14.02 14.01(b)(iii), Section 14.01(b)(v), Section 14.03(b) and Section 14.07(a) and other than in connection with a Tax Extinguishment Event as set forth under Section 4.09(a), upon exchange of any Note, the Company shall, at its electionoption, pay or deliverdeliver (or cause the payment or delivery of), as the case may be, to the exchanging Holder, in respect of each $1,000 principal amount of principal of and accrued but unpaid interest on the Notes being exchanged, cash (“Cash Settlement”), Ordinary Sharesshares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional Ordinary Share share of Common Stock in accordance with subsection (ij) of this Section 14.02 (“Physical Settlement”) or a combination of cash and Ordinary Sharesshares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional Ordinary Share share of Common Stock in accordance with subsection (ij) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02.
(i) All exchanges for which the relevant Exchange Date occurs on or after October 15, 2029 shall be settled using the Company’s issuance of a Redemption Notice with respect to the Notes and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Datesame Settlement Method, and all exchanges for which the relevant Exchange Date occurs on or after October 31, 2024, 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 any exchanges for which the relevant Exchange Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes but prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date, Date and any exchanges for which the relevant Exchange Date occurs on or after October 3115, 20242029, the Company shall use the same Settlement Method for all exchanges with the same Exchange Date, but the Company shall not have any obligation to use the same Settlement Method with respect to exchanges that occur on with different Exchange Dates.
(iii) If, in respect of any Exchange Date (or the period described in the fourth third immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a written notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Exchange Date (or such period, as the case may be), the Company Company, through the Trustee, shall deliver such Settlement Notice to exchanging Holders (with a copy to the Trustee and Exchange Agent) no later than the close of business on the second Trading Day immediately following the relevant related Exchange Date (or, in the case of any exchanges of any Notes for which the relevant Exchange Date occurs (Ax) on or after the date of issuance of a Redemption Notice with respect to the Notes and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date Date, in such Redemption Notice or (By) on or after October 3115, 20242029, no later than October 15, 2029). Such Settlement Notice shall specify the close relevant Settlement Method and in the case of business on the Business Day immediately preceding October 31, 2024); provided, however, that with respect to a Mandatory Exchangean election of Combination Settlement, the Mandatory Exchange relevant Settlement Notice shall constitute indicate the Settlement NoticeSpecified Dollar 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 second 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 Exchange Obligation, and the Specified Dollar Amount per $1,000 principal amount of principal of and accrued but unpaid interest on the Notes being exchanged shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 of principal of and accrued but unpaid interest on the Notes being exchanged. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Exchange Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of principal of and accrued but unpaid interest on the Notes being exchanged in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of principal of and accrued but unpaid interest on the Notes being exchanged shall be deemed to be $1,000. Notwithstanding the immediately preceding two sentences, in respect of any exchange of Notes for which the relevant Notice of Exchange is received by the Exchange Agent from, and including, the date of any Redemption Notice until the close of business on the Scheduled Trading Day immediately preceding the relevant Redemption Date, the Company must elect to settle such exchange in accordance with Section 14.01(b)(v).
(iv) The cash, Ordinary Shares shares of Common Stock or combination of cash and Ordinary Shares shares of Common Stock in respect of any exchange of Notes (the “Settlement Amount”) shall be computed as follows:
(A) if the Company elects (or is deemed to have elected) to satisfy its Exchange Obligation in respect of such exchange by Physical Settlement, the Company shall deliver or cause to be delivered to the exchanging Holder in respect of each $1,000 principal amount of principal of and accrued but unpaid interest on the Notes being exchanged a number of Ordinary Shares shares of Common Stock equal to the Exchange Rate in effect on the Exchange Date;
(B) if the Company elects (or is deemed to have elected) to satisfy its Exchange Obligation in respect of such exchange by Cash Settlement, the Company shall pay or cause to be paid to the exchanging Holder in respect of each $1,000 principal amount of principal of and accrued but unpaid interest on the Notes being exchanged cash in an amount equal to the sum of the Daily Exchange Values for each of the 30 40 consecutive Trading Days during the related applicable Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Exchange Obligation in respect of such exchange by Combination Settlement, the Company shall pay or deliver or cause to be deliveredthe payment or delivery of, as the case may be, to the exchanging Holder in respect of each $1,000 principal amount of principal of and accrued but unpaid interest on the Notes being exchanged, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 30 40 consecutive Trading Days during the related applicable Observation Period.
(v) The Daily Settlement Amounts (if applicable) and the Daily Exchange 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 Exchange Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional Ordinary Shareshare of Common Stock, the Company shall notify the Trustee and the Exchange Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Exchange Values, as the case may be, and the amount of cash payable in lieu of delivering fractional Ordinary Sharesshares of Common Stock. The Trustee and the Exchange Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 14.02(e), before Before any Holder of a Note shall be entitled to exchange a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and, if required, pay all transfer or similar taxes, if any, as set forth in Section 14.02(e) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Exchange Agent as set forth in the Form of Notice of Exchange (or a facsimile thereof) (a “Notice of Exchange”) at the Corporate Trust Office or the office of the Exchange Agent (if other than the Trustee) and state in writing therein the principal amount of Notes to be exchanged and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any Ordinary Shares shares of Common Stock to be delivered upon settlement of the Exchange Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the Corporate Trust Office or the office of the Exchange Agent (if other than the Trustee)Agent, (3) if required, furnish appropriate endorsements and transfer documents and documents, (4) with respect if required, pay funds equal to any exchange by a the interest payable on the next Interest Payment Date to which such Holder of a Specified Noteis not entitled as set forth in Section 14.02(h) and (5) if required, provide the Companypay all transfer or similar taxes, Iterum and the Trustee with any certificationsif any, representations and other documentation reasonably requested by the Company, Iterum or the Trustee to demonstrate the Holder’s compliance with as set forth in Section 14.01(c14.02(e); provided, however, that the Notice of Exchange in clause (1) shall not be required in the case of a Mandatory Exchange. The Trustee (and, and if different, the Exchange Agent) shall notify the Company of any voluntary exchange pursuant to this Article 14 on the Exchange Date for such exchange. No Notice of Exchange with respect to any Notes may be surrendered by a Holder thereof if (i) 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 or (ii) the Company has delivered a Mandatory Exchange Notice15.03. If more than one Note shall be surrendered for exchange at one time by the same Holder, the Exchange Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of principal of and accrued but unpaid interest on the Notes so surrendered (or specified portions thereof to the extent permitted thereby)) so surrendered.
(c) A Note shall be deemed to have been exchanged immediately prior to the close of business on the date (the “Exchange Date”) that the Holder has complied with the requirements set forth in subsection (b) above (or, in the case of a Mandatory Exchange, the Exchange Date set forth in the Mandatory Exchange NoticeSection 14.02(b). Except as provided set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or cause to be delivereddeliver, as the case may be, the consideration due in respect of the Exchange Obligation (i) on the second Business Day immediately following the relevant Exchange Date, if the Company elects (or is deemed to use have elected) Physical Settlement, or (ii) on the second Business Day immediately following the last Trading Day of the relevant Observation Period, in the case of any other Settlement Method (the “Exchange Settlement Date”)Method. Subject to Section 14.01(c), if If any Ordinary Shares shares of Common Stock are due to an exchanging HoldersHolder, the Company shall issue deliver or cause to be issued, and deliver delivered to the Exchange 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 Ordinary Shares shares of Common Stock to which such Holder shall be entitled entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Exchange Obligation.
(d) In case any Note shall be surrendered for partial exchange, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unexchanged portion of the surrendered Note, without payment of any service charge by the exchanging Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such exchange being different from the name of the Holder of the old Notes surrendered for such exchange.
(e) If a Holder submits a Note for exchange, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issuance delivery of any Ordinary Shares shares of Common Stock upon exchange, unless the tax is due because the Holder requests such shares to be issued delivered in a name other than the Holder’s name, in which case the Holder shall pay that the tax. The Exchange Agent may refuse to deliver the certificates representing the Ordinary Shares shares of Common Stock being issued delivered in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock delivered upon the exchange of any Note as provided in this Article 14.
(g) Upon the exchange of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any exchange of Notes effected through any Exchange Agent other than the Trustee.
(gh) Upon exchange, a Holder shall not receive any separate additional cash payment for or additional shares of Common Stock representing accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Exchange Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not includingexcluding, the relevant Exchange Date. As a result, accrued and unpaid interest, if any, to, but not includingexcluding, the relevant Exchange Date shall be deemed to be paid in full rather than canceledcancelled, extinguished or forfeited. Upon an exchange of Notes for into a combination of cash and Ordinary Sharesshares of Common Stock, any accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such exchange. Notwithstanding the foregoing, if Notes are exchanged 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 exchange. Notes surrendered for exchange during the period from the close of business on any Regular Record Date 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 exchanged; provided that no such payment shall be required (1) for exchanges 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 exchange 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 the Redemption Date, as the case may be, shall receive the full interest payment due on the Maturity Date or the Redemption Date, as applicable, in cash regardless of whether their Notes have been exchanged following such Regular Record Date.
(hi) The Person in whose name the certificate for any Ordinary Shares delivered shares of Common Stock shall be deliverable upon exchange is registered shall be treated as a shareholder stockholder of record as of the close of business on the relevant Exchange Date (if the exchange is settled Company elects to satisfy the related Exchange Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Exchange Obligation by Combination Settlement), as the case may be. Upon an exchange of Notes, such Person shall no longer be a Holder of such Notes surrendered for exchange.
(ij) The Company shall not issue deliver any fractional Ordinary Share share of Common Stock upon any exchange of the Notes and shall instead pay cash in lieu of delivering any fractional Ordinary Share issuable share of Common Stock deliverable upon exchange based on the Daily VWAP on for the relevant Exchange Date (in the case of Physical Settlement) or based on the Daily VWAP on for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for exchange, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be issued delivered upon exchange 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 (Iac/Interactivecorp)
Exchange Procedure; Settlement Upon Exchange. (a) Subject to this Section 14.01(c14.02, Section 14.01(b)(ii), this Section 14.02 14.01(b)(iii), Section 14.01(b)(v), Section 14.03(b) and Section 14.07(a) and other than in connection with a Tax Extinguishment Event as set forth under Section 4.09(a), upon exchange of any Note, the Company shall, at its electionoption, pay or deliverdeliver (or cause the payment or delivery of), as the case may be, to the exchanging Holder, in respect of each $1,000 principal amount of principal of and accrued but unpaid interest on the Notes being exchanged, cash (“Cash Settlement”), Ordinary Sharesshares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional Ordinary Share share of Common Stock in accordance with subsection (ij) of this Section 14.02 (“Physical Settlement”) or a combination of cash and Ordinary Sharesshares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional Ordinary Share share of Common Stock in accordance with subsection (ij) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02.
(i) All exchanges for which the relevant Exchange Date occurs on or after March 15, 2026 shall be settled using the Company’s issuance of a Redemption Notice with respect to the Notes and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Datesame Settlement Method, and all exchanges for which the relevant Exchange Date occurs on or after October 31, 2024, 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 any exchanges for which the relevant Exchange Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes but prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date, Date and any exchanges for which the relevant Exchange Date occurs on or after October 31March 15, 20242026, the Company shall use the same Settlement Method for all exchanges with the same Exchange Date, but the Company shall not have any obligation to use the same Settlement Method with respect to exchanges that occur on with different Exchange Dates.
(iii) If, in respect of any Exchange Date (or the period described in the fourth third immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a written notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Exchange Date (or such period, as the case may be), the Company Company, through the Trustee, shall deliver such Settlement Notice to exchanging Holders (with a copy to the Trustee and Exchange Agent) no later than the close of business on the second Trading Day immediately following the relevant related Exchange Date (or, in the case of any exchanges of any Notes for which the relevant Exchange Date occurs (Ax) on or after the date of issuance of a Redemption Notice with respect to the Notes and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date Date, in such Redemption Notice or (By) on or after October 31March 15, 20242026, no later than March 15, 2026). Such Settlement Notice shall specify the close relevant Settlement Method and in the case of business on the Business Day immediately preceding October 31, 2024); provided, however, that with respect to a Mandatory Exchangean election of Combination Settlement, the Mandatory Exchange relevant Settlement Notice shall constitute indicate the Settlement NoticeSpecified Dollar 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 second 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 Exchange Obligation, and the Specified Dollar Amount per $1,000 principal amount of principal of and accrued but unpaid interest on the Notes being exchanged shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 of principal of and accrued but unpaid interest on the Notes being exchanged. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Exchange Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of principal of and accrued but unpaid interest on the Notes being exchanged in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of principal of and accrued but unpaid interest on the Notes being exchanged shall be deemed to be $1,000. Notwithstanding the immediately preceding two sentences, in respect of any exchange of Notes for which the relevant Notice of Exchange is received by the Exchange Agent from, and including, the date of any Redemption Notice until the close of business on the Scheduled Trading Day immediately preceding the relevant Redemption Date, the Company must elect to settle such exchange in accordance with Section 14.01(b)(v).
(iv) The cash, Ordinary Shares shares of Common Stock or combination of cash and Ordinary Shares shares of Common Stock in respect of any exchange of Notes (the “Settlement Amount”) shall be computed as follows:
(A) if the Company elects (or is deemed to have elected) to satisfy its Exchange Obligation in respect of such exchange by Physical Settlement, the Company shall deliver or cause to be delivered to the exchanging Holder in respect of each $1,000 principal amount of principal of and accrued but unpaid interest on the Notes being exchanged a number of Ordinary Shares shares of Common Stock equal to the Exchange Rate in effect on the Exchange Date;
(B) if the Company elects (or is deemed to have elected) to satisfy its Exchange Obligation in respect of such exchange by Cash Settlement, the Company shall pay or cause to be paid to the exchanging Holder in respect of each $1,000 principal amount of principal of and accrued but unpaid interest on the Notes being exchanged cash in an amount equal to the sum of the Daily Exchange Values for each of the 30 40 consecutive Trading Days during the related applicable Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Exchange Obligation in respect of such exchange by Combination Settlement, the Company shall pay or deliver or cause to be deliveredthe payment or delivery of, as the case may be, to the exchanging Holder in respect of each $1,000 principal amount of principal of and accrued but unpaid interest on the Notes being exchanged, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 30 40 consecutive Trading Days during the related applicable Observation Period.
(v) The Daily Settlement Amounts (if applicable) and the Daily Exchange 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 Exchange Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional Ordinary Shareshare of Common Stock, the Company shall notify the Trustee and the Exchange Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Exchange Values, as the case may be, and the amount of cash payable in lieu of delivering fractional Ordinary Sharesshares of Common Stock. The Trustee and the Exchange Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 14.02(e), before Before any Holder of a Note shall be entitled to exchange a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and, if required, pay all transfer or similar taxes, if any, as set forth in Section 14.02(e) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Exchange Agent as set forth in the Form of Notice of Exchange (or a facsimile thereof) (a “Notice of Exchange”) at the Corporate Trust Office or the office of the Exchange Agent (if other than the Trustee) and state in writing therein the principal amount of Notes to be exchanged and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any Ordinary Shares shares of Common Stock to be delivered upon settlement of the Exchange Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the Corporate Trust Office or the office of the Exchange Agent (if other than the Trustee)Agent, (3) if required, furnish appropriate endorsements and transfer documents and documents, (4) with respect if required, pay funds equal to any exchange by a the interest payable on the next Interest Payment Date to which such Holder of a Specified Noteis not entitled as set forth in Section 14.02(h) and (5) if required, provide the Companypay all transfer or similar taxes, Iterum and the Trustee with any certificationsif any, representations and other documentation reasonably requested by the Company, Iterum or the Trustee to demonstrate the Holder’s compliance with as set forth in Section 14.01(c14.02(e); provided, however, that the Notice of Exchange in clause (1) shall not be required in the case of a Mandatory Exchange. The Trustee (and, and if different, the Exchange Agent) shall notify the Company of any voluntary exchange pursuant to this Article 14 on the Exchange Date for such exchange. No Notice of Exchange with respect to any Notes may be surrendered by a Holder thereof if (i) 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 or (ii) the Company has delivered a Mandatory Exchange Notice15.03. If more than one Note shall be surrendered for exchange at one time by the same Holder, the Exchange Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of principal of and accrued but unpaid interest on the Notes so surrendered (or specified portions thereof to the extent permitted thereby)) so surrendered.
(c) A Note shall be deemed to have been exchanged immediately prior to the close of business on the date (the “Exchange Date”) that the Holder has complied with the requirements set forth in subsection (b) above (or, in the case of a Mandatory Exchange, the Exchange Date set forth in the Mandatory Exchange NoticeSection 14.02(b). Except as provided set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or cause to be delivereddeliver, as the case may be, the consideration due in respect of the Exchange Obligation (i) on the second Business Day immediately following the relevant Exchange Date, if the Company elects (or is deemed to use have elected) Physical Settlement, or (ii) on the second Business Day immediately following the last Trading Day of the relevant Observation Period, in the case of any other Settlement Method (the “Exchange Settlement Date”)Method. Subject to Section 14.01(c), if If any Ordinary Shares shares of Common Stock are due to an exchanging HoldersHolder, the Company shall issue deliver or cause to be issued, and deliver delivered to the Exchange 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 Ordinary Shares shares of Common Stock to which such Holder shall be entitled entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Exchange Obligation.
(d) In case any Note shall be surrendered for partial exchange, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unexchanged portion of the surrendered Note, without payment of any service charge by the exchanging Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such exchange being different from the name of the Holder of the old Notes surrendered for such exchange.
(e) If a Holder submits a Note for exchange, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issuance delivery of any Ordinary Shares shares of Common Stock upon exchange, unless the tax is due because the Holder requests such shares to be issued delivered in a name other than the Holder’s name, in which case the Holder shall pay that the tax. The Exchange Agent may refuse to deliver the certificates representing the Ordinary Shares shares of Common Stock being issued delivered in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock delivered upon the exchange of any Note as provided in this Article 14.
(g) Upon the exchange of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any exchange of Notes effected through any Exchange Agent other than the Trustee.
(gh) Upon exchange, a Holder shall not receive any separate additional cash payment for or additional shares of Common Stock representing accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Exchange Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not includingexcluding, the relevant Exchange Date. As a result, accrued and unpaid interest, if any, to, but not includingexcluding, the relevant Exchange Date shall be deemed to be paid in full rather than canceledcancelled, extinguished or forfeited. Upon an exchange of Notes for into a combination of cash and Ordinary Sharesshares of Common Stock, any accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such exchange. Notwithstanding the foregoing, if Notes are exchanged 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 exchange. Notes surrendered for exchange during the period from the close of business on any Regular Record Date 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 exchanged; provided that no such payment shall be required (1) for exchanges 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 exchange 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 the Redemption Date, as the case may be, shall receive the full interest payment due on the Maturity Date or the Redemption Date, as applicable, in cash regardless of whether their Notes have been exchanged following such Regular Record Date.
(hi) The Person in whose name the certificate for any Ordinary Shares delivered shares of Common Stock shall be deliverable upon exchange is registered shall be treated as a shareholder stockholder of record as of the close of business on the relevant Exchange Date (if the exchange is settled Company elects to satisfy the related Exchange Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Exchange Obligation by Combination Settlement), as the case may be. Upon an exchange of Notes, such Person shall no longer be a Holder of such Notes surrendered for exchange.
(ij) The Company shall not issue deliver any fractional Ordinary Share share of Common Stock upon any exchange of the Notes and shall instead pay cash in lieu of delivering any fractional Ordinary Share issuable share of Common Stock deliverable upon exchange based on the Daily VWAP on for the relevant Exchange Date (in the case of Physical Settlement) or based on the Daily VWAP on for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for exchange, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be issued delivered upon exchange 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 (Iac/Interactivecorp)
Exchange Procedure; Settlement Upon Exchange. (a) Subject to Section 14.01(c), this Section 14.02 and Section 14.07(a), upon exchange of any Note, the Company shall, at its election, pay or deliver, as the case may be, to the exchanging Holder, in respect of each $1,000 of principal of and accrued but unpaid interest on the Notes being exchanged, cash (“Cash Settlement”), Ordinary Shares, together with cash, if applicable, in lieu of delivering any fractional Ordinary Share in accordance with subsection (i) of this Section 14.02 (“Physical Settlement”) or a combination of cash and Ordinary Shares, together with cash, if applicable, in lieu of delivering any fractional Ordinary Share in accordance with subsection (i) of this Section 14.02 (“Combination Settlement”), as set forth in this Section 14.02.
(i) All exchanges for which the relevant Exchange Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date, and all exchanges for which the relevant Exchange Date occurs on or after October 31, 2024, shall be settled using the same Settlement Method.
(ii) Except for any exchanges for which the relevant Exchange Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes but prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date, and any exchanges for which the relevant Exchange Date occurs on or after October 31, 2024, the Company shall use the same Settlement Method for all exchanges with the same Exchange Date, but the Company shall not have any obligation to use the same Settlement Method with respect to exchanges that occur on different Exchange Dates.
(iii) If, in respect of any Exchange Date (or the period described in the fourth immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a written notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Exchange Date (or such period, as the case may be), the Company shall deliver such Settlement Notice to exchanging Holders (with a copy to the Trustee and Exchange Agent) no later than the close of business on the Trading Day immediately following the relevant Exchange Date (or, in the case of any exchanges of any Notes for which the relevant Exchange Date occurs (A) on or after the date of issuance of a Redemption Notice with respect to the Notes and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date in such Redemption Notice or (B) on or after October 31, 2024, no later than the close of business on the Business Day immediately preceding October 31, 2024); provided, however, that with respect to a Mandatory Exchange, the Mandatory Exchange Notice shall constitute the Settlement Notice. 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 Exchange Obligation, and the Specified Dollar Amount per $1,000 of principal of and accrued but unpaid interest on the Notes being exchanged shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 of principal of and accrued but unpaid interest on the Notes being exchanged. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Exchange Obligation but does not indicate a Specified Dollar Amount per $1,000 of principal of and accrued but unpaid interest on the Notes being exchanged in such Settlement Notice, the Specified Dollar Amount per $1,000 of principal of and accrued but unpaid interest on the Notes being exchanged shall be deemed to be $1,000.
(iv) The cash, Ordinary Shares or combination of cash and Ordinary Shares in respect of any exchange of Notes (the “Settlement Amount”) shall be computed as follows:
(A) if the Company elects to satisfy its Exchange Obligation in respect of such exchange by Physical Settlement, the Company shall cause to be delivered to the exchanging Holder in respect of each $1,000 of principal of and accrued but unpaid interest on the Notes being exchanged a number of Ordinary Shares equal to the Exchange Rate in effect on the Exchange Date;
(B) if the Company elects to satisfy its Exchange Obligation in respect of such exchange by Cash Settlement, the Company shall pay to the exchanging Holder in respect of each $1,000 of principal of and accrued but unpaid interest on the Notes being exchanged cash in an amount equal to the sum of the Daily Exchange Values for each of the 30 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Exchange Obligation in respect of such exchange by Combination Settlement, the Company shall pay or cause to be delivered, as the case may be, in respect of each $1,000 of principal of and accrued but unpaid interest on the Notes being exchanged, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 30 consecutive Trading Days during the related Observation Period.
(v) The Daily Settlement Amounts (if applicable) and the Daily Exchange 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 Exchange Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional Ordinary Share, the Company shall notify the Trustee and the Exchange Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Exchange Values, as the case may be, and the amount of cash payable in lieu of delivering fractional Ordinary Shares. The Trustee and the Exchange Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to exchange a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time and (ii) in the case of a Physical Note Note
(1) complete, manually sign and deliver an irrevocable notice to the Exchange Agent as set forth in the Form of Notice of Exchange (or a facsimile thereof) (a “Notice of Exchange”) at the Corporate Trust Office or the office of the Exchange Agent (if other than the Trustee) and state in writing therein the principal amount of Notes to be exchanged and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any Ordinary Shares to be delivered upon settlement of the Exchange Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the Corporate Trust Office or the office of the Exchange Agent (if other than the Trustee), (3) if required, furnish appropriate endorsements and transfer documents and (4) with respect to any exchange by a Holder of a Specified Note, provide the Company, Iterum and the Trustee with any certifications, representations and other documentation reasonably requested by the Company, Iterum or the Trustee to demonstrate the Holder’s compliance with Section 14.01(c); provided, however, that the Notice of Exchange in clause (1) shall not be required in the case of a Mandatory Exchange. The Trustee (and, if different, the Exchange Agent) shall notify the Company of any voluntary exchange pursuant to this Article 14 on the Exchange Date for such exchange. No Notice of Exchange with respect to any Notes may be surrendered by a Holder thereof if (i) 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 or (ii) the Company has delivered a Mandatory Exchange Notice. If more than one Note shall be surrendered for exchange at one time by the same Holder, the Exchange Obligation with respect to such Notes shall be computed on the basis of the aggregate of principal of and accrued but unpaid interest on the Notes so surrendered (or specified portions thereof to the extent permitted thereby).
(c) A Note shall be deemed to have been exchanged immediately prior to the close of business on the date (the “Exchange Date”) that the Holder has complied with the requirements set forth in subsection (b) above (or, in the case of a Mandatory Exchange, the Exchange Date set forth in the Mandatory Exchange Notice). Except as provided in Section 14.07(a), the Company shall pay or cause to be delivered, as the case may be, the consideration due in respect of the Exchange Obligation (i) on the second Business Day immediately following the relevant Exchange Date, if the Company elects to use Physical Settlement, or (ii) on the second Business Day immediately following the last Trading Day of the relevant Observation Period, in the case of any other Settlement Method (the “Exchange Settlement Date”). Subject to Section 14.01(c), if any Ordinary Shares are due to exchanging Holders, the Company shall issue or cause to be issued, and deliver to the Exchange 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 Ordinary Shares to which such Holder shall be entitled in satisfaction of the Company’s Exchange Obligation.
(d) In case any Note shall be surrendered for partial exchange, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unexchanged portion of the surrendered Note, without payment of any service charge by the exchanging Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such exchange being different from the name of the Holder of the old Notes surrendered for such exchange.
(e) If a Holder submits a Note for exchange, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issuance of any Ordinary Shares upon exchange, 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 Exchange Agent may refuse to deliver the certificates representing the Ordinary Shares being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Upon the exchange of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any exchange of Notes effected through any Exchange Agent other than the Trustee.
(g) Upon exchange, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any. The Company’s settlement of the full Exchange Obligation shall be 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 Exchange Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Exchange Date shall be deemed to be paid in full rather than canceled, extinguished or forfeited. Upon an exchange of Notes for a combination of cash and Ordinary Shares, any accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such exchange.
(h) The Person in whose name the certificate for any Ordinary Shares delivered upon exchange is registered shall be treated as a shareholder of record as of the close of business on the relevant Exchange Date (if the exchange is settled by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Exchange Obligation by Combination Settlement), as the case may be. Upon an exchange of Notes, such Person shall no longer be a Holder of such Notes surrendered for exchange.
(i) The Company shall not issue any fractional Ordinary Share upon exchange of the Notes and shall instead pay cash in lieu of delivering any fractional Ordinary Share issuable upon exchange based on the Daily VWAP on the relevant Exchange Date (in the case of Physical Settlement) or based on the Daily VWAP on the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for exchange, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be issued upon exchange 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
Exchange Procedure; Settlement Upon Exchange. (a) Subject to Section 14.01(cthis Section 14.02, Section 14.01(b)(ii), this Section 14.02 Section 14.01(b)(iii), Section 14.01(b)(v), Section 14.03(b) and Section Section 14.07(a) and other than in connection with a Tax Extinguishment Event as set forth under Section 4.09(a), upon exchange of any Note, the Company shall, at its electionoption, pay or deliverdeliver (or cause the payment or delivery of), as the case may be, to the exchanging Holder, in respect of each $1,000 principal amount of principal of and accrued but unpaid interest on the Notes being exchanged, cash (“Cash Settlement”), Ordinary Sharesshares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional Ordinary Share share of Common Stock in accordance with subsection (i(j) of this Section Section 14.02 (“Physical Settlement”) or a combination of cash and Ordinary Sharesshares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional Ordinary Share share of Common Stock in accordance with subsection (i(j) of this Section Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section Section 14.02.
(i) All exchanges for which the relevant Exchange Date occurs on or after March 15, 2026 shall be settled using the same Settlement Method, and all exchanges for which the relevant Exchange Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date, and all exchanges for which the relevant Exchange Date occurs on or after October 31, 2024, shall be settled using the same Settlement Method.
(ii) Except for any exchanges for which the relevant Exchange Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes but prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date, Date and any exchanges for which the relevant Exchange Date occurs on or after October 31March 15, 20242026, the Company shall use the same Settlement Method for all exchanges with the same Exchange Date, but the Company shall not have any obligation to use the same Settlement Method with respect to exchanges that occur on with different Exchange Dates.
(iii) If, in respect of any Exchange Date (or the period described in the fourth third immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a written notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Exchange Date (or such period, as the case may be), the Company Company, through the Trustee, shall deliver such Settlement Notice to exchanging Holders (with a copy to the Trustee and Exchange Agent) no later than the close of business on the second Trading Day immediately following the relevant related Exchange Date (or, in the case of any exchanges of any Notes for which the relevant Exchange Date occurs (Ax) on or after the date of issuance of a Redemption Notice with respect to the Notes and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date Date, in such Redemption Notice or (By) on or after October 31March 15, 20242026, no later than March 15, 2026). Such Settlement Notice shall specify the close relevant Settlement Method and in the case of business on the Business Day immediately preceding October 31, 2024); provided, however, that with respect to a Mandatory Exchangean election of Combination Settlement, the Mandatory Exchange relevant Settlement Notice shall constitute indicate the Settlement NoticeSpecified Dollar 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 second 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 Exchange Obligation, and the Specified Dollar Amount per $1,000 principal amount of principal of and accrued but unpaid interest on the Notes being exchanged shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 of principal of and accrued but unpaid interest on the Notes being exchanged. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Exchange Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of principal of and accrued but unpaid interest on the Notes being exchanged in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of principal of and accrued but unpaid interest on the Notes being exchanged shall be deemed to be $1,000. Notwithstanding the immediately preceding two sentences, in respect of any exchange of Notes for which the relevant Notice of Exchange is received by the Exchange Agent from, and including, the date of any Redemption Notice until the close of business on the Scheduled Trading Day immediately preceding the relevant Redemption Date, the Company must elect to settle such exchange in accordance with Section 14.01(b)(v).
(iv) The cash, Ordinary Shares shares of Common Stock or combination of cash and Ordinary Shares shares of Common Stock in respect of any exchange of Notes (the “Settlement Amount”) shall be computed as follows:
(A) if the Company elects (or is deemed to have elected) to satisfy its Exchange Obligation in respect of such exchange by Physical Settlement, the Company shall deliver or cause to be delivered to the exchanging Holder in respect of each $1,000 principal amount of principal of and accrued but unpaid interest on the Notes being exchanged a number of Ordinary Shares shares of Common Stock equal to the Exchange Rate in effect on the Exchange Date;
(B) if the Company elects (or is deemed to have elected) to satisfy its Exchange Obligation in respect of such exchange by Cash Settlement, the Company shall pay or cause to be paid to the exchanging Holder in respect of each $1,000 principal amount of principal of and accrued but unpaid interest on the Notes being exchanged cash in an amount equal to the sum of the Daily Exchange Values for each of the 30 40 consecutive Trading Days during the related applicable Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Exchange Obligation in respect of such exchange by Combination Settlement, the Company shall pay or deliver or cause to be deliveredthe payment or delivery of, as the case may be, to the exchanging Holder in respect of each $1,000 principal amount of principal of and accrued but unpaid interest on the Notes being exchanged, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 30 40 consecutive Trading Days during the related applicable Observation Period.
(v) The Daily Settlement Amounts (if applicable) and the Daily Exchange 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 Exchange Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional Ordinary Shareshare of Common Stock, the Company shall notify the Trustee and the Exchange Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Exchange Values, as the case may be, and the amount of cash payable in lieu of delivering fractional Ordinary Sharesshares of Common Stock. The Trustee and the Exchange Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 14.02(e), before Before any Holder of a Note shall be entitled to exchange a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and, if required, pay all transfer or similar taxes, if any, as set forth in Section 14.02(e) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Exchange Agent as set forth in the Form of Notice of Exchange (or a facsimile thereof) (a “Notice of Exchange”) at the Corporate Trust Office or the office of the Exchange Agent (if other than the Trustee) and state in writing therein the principal amount of Notes to be exchanged and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any Ordinary Shares shares of Common Stock to be delivered upon settlement of the Exchange Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the Corporate Trust Office or the office of the Exchange Agent (if other than the Trustee)Agent, (3) if required, furnish appropriate endorsements and transfer documents and documents, (4) with respect if required, pay funds equal to any exchange by a the interest payable on the next Interest Payment Date to which such Holder of a Specified Noteis not entitled as set forth in Section 14.02(h) and (5) if required, provide the Companypay all transfer or similar taxes, Iterum and the Trustee with any certificationsif any, representations and other documentation reasonably requested by the Company, Iterum or the Trustee to demonstrate the Holder’s compliance with Section 14.01(cas set forth in Section 14.02(e); provided, however, that the Notice of Exchange in clause (1) shall not be required in the case of a Mandatory Exchange. The Trustee (and, and if different, the Exchange Agent) shall notify the Company of any voluntary exchange pursuant to this Article Article 14 on the Exchange Date for such exchange. No Notice of Exchange with respect to any Notes may be surrendered by a Holder thereof if (i) 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 or (ii) the Company has delivered a Mandatory Exchange NoticeSection 15.03. If more than one Note shall be surrendered for exchange at one time by the same Holder, the Exchange Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of principal of and accrued but unpaid interest on the Notes so surrendered (or specified portions thereof to the extent permitted thereby)) so surrendered.
(c) A Note shall be deemed to have been exchanged immediately prior to the close of business on the date (the “Exchange Date”) that the Holder has complied with the requirements set forth in subsection (b) above (or, in the case of a Mandatory Exchange, the Exchange Date set forth in the Mandatory Exchange NoticeSection 14.02(b). Except as provided set forth in Section Section 14.03(b) and Section 14.07(a), the Company shall pay or cause to be delivereddeliver, as the case may be, the consideration due in respect of the Exchange Obligation (i) on the second Business Day immediately following the relevant Exchange Date, if the Company elects (or is deemed to use have elected) Physical Settlement, or (ii) on the second Business Day immediately following the last Trading Day of the relevant Observation Period, in the case of any other Settlement Method (the “Exchange Settlement Date”)Method. Subject to Section 14.01(c), if If any Ordinary Shares shares of Common Stock are due to an exchanging HoldersHolder, the Company shall issue deliver or cause to be issued, and deliver delivered to the Exchange 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 Ordinary Shares shares of Common Stock to which such Holder shall be entitled entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Exchange Obligation.
(d) In case any Note shall be surrendered for partial exchange, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unexchanged portion of the surrendered Note, without payment of any service charge by the exchanging Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such exchange being different from the name of the Holder of the old Notes surrendered for such exchange.. 80
(e) If a Holder submits a Note for exchange, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issuance delivery of any Ordinary Shares shares of Common Stock upon exchange, unless the tax is due because the Holder requests such shares to be issued delivered in a name other than the Holder’s name, in which case the Holder shall pay that the tax. The Exchange Agent may refuse to deliver the certificates representing the Ordinary Shares shares of Common Stock being issued delivered in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock delivered upon the exchange of any Note as provided in this Article 14.
(g) Upon the exchange of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any exchange of Notes effected through any Exchange Agent other than the Trustee.
(gh) Upon exchange, a Holder shall not receive any separate additional cash payment for or additional shares of Common Stock representing accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Exchange Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not includingexcluding, the relevant Exchange Date. As a result, accrued and unpaid interest, if any, to, but not includingexcluding, the relevant Exchange Date shall be deemed to be paid in full rather than canceledcancelled, extinguished or forfeited. Upon an exchange of Notes for into a combination of cash and Ordinary Sharesshares of Common Stock, any accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such exchange. Notwithstanding the foregoing, if Notes are exchanged 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 exchange. Notes surrendered for exchange during the period from the close of business on any Regular Record Date 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 exchanged; provided that no such payment shall be required (1) for exchanges 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 exchange 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 the Redemption Date, as the case may be, shall receive the full interest payment due on the Maturity Date or the Redemption Date, as applicable, in cash regardless of whether their Notes have been exchanged following such Regular Record Date.
(hi) The Person in whose name the certificate for any Ordinary Shares delivered shares of Common Stock shall be deliverable upon exchange is registered shall be treated as a shareholder stockholder of record as of the close of business on the relevant Exchange Date (if the exchange is settled Company elects to satisfy the related Exchange Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Exchange Obligation by Combination Settlement), as the case may be. Upon an exchange of Notes, such Person shall no longer be a Holder of such Notes surrendered for exchange.
(ij) The Company shall not issue deliver any fractional Ordinary Share share of Common Stock upon any exchange of the Notes and shall instead pay cash in lieu of delivering any fractional Ordinary Share issuable share of Common Stock deliverable upon exchange based on the Daily VWAP on for the relevant Exchange Date (in the case of Physical Settlement) or based on the Daily VWAP on for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for exchange, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be issued delivered upon exchange 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
Exchange Procedure; Settlement Upon Exchange. (a) Subject to Section 14.01(cthis Section 14.02, Section 14.01(b)(ii), this Section 14.02 Section 14.01(b)(iii), Section 14.01(b)(v), Section 14.03(b) and Section Section 14.07(a) and other than in connection with a Tax Extinguishment Event as set forth under Section 4.09(a), upon exchange of any Note, the Company shall, at its electionoption, pay or deliverdeliver (or cause the payment or delivery of), as the case may be, to the exchanging Holder, in respect of each $1,000 principal amount of principal of and accrued but unpaid interest on the Notes being exchanged, cash (“Cash Settlement”), Ordinary Sharesshares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional Ordinary Share share of Common Stock in accordance with subsection (i(j) of this Section Section 14.02 (“Physical Settlement”) or a combination of cash and Ordinary Sharesshares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional Ordinary Share share of Common Stock in accordance with subsection (i(j) of this Section Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section Section 14.02.
(i) All exchanges for which the relevant Exchange Date occurs on or after October 15, 2029 shall be settled using the same Settlement Method, and all exchanges for which the relevant Exchange Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date, and all exchanges for which the relevant Exchange Date occurs on or after October 31, 2024, shall be settled using the same Settlement Method.
(ii) Except for any exchanges for which the relevant Exchange Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes but prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date, Date and any exchanges for which the relevant Exchange Date occurs on or after October 3115, 20242029, the Company shall use the same Settlement Method for all exchanges with the same Exchange Date, but the Company shall not have any obligation to use the same Settlement Method with respect to exchanges that occur on with different Exchange Dates.
(iii) If, in respect of any Exchange Date (or the period described in the fourth third immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a written notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Exchange Date (or such period, as the case may be), the Company Company, through the Trustee, shall deliver such Settlement Notice to exchanging Holders (with a copy to the Trustee and Exchange Agent) no later than the close of business on the second Trading Day immediately following the relevant related Exchange Date (or, in the case of any exchanges of any Notes for which the relevant Exchange Date occurs (Ax) on or after the date of issuance of a Redemption Notice with respect to the Notes and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date Date, in such Redemption Notice or (By) on or after October 3115, 20242029, no later than October 15, 2029). Such Settlement Notice shall specify the close relevant Settlement Method and in the case of business on the Business Day immediately preceding October 31, 2024); provided, however, that with respect to a Mandatory Exchangean election of Combination Settlement, the Mandatory Exchange relevant Settlement Notice shall constitute indicate the Settlement NoticeSpecified Dollar 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 second 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 Exchange Obligation, and the Specified Dollar Amount per $1,000 principal amount of principal of and accrued but unpaid interest on the Notes being exchanged shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 of principal of and accrued but unpaid interest on the Notes being exchanged. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Exchange Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of principal of and accrued but unpaid interest on the Notes being exchanged in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of principal of and accrued but unpaid interest on the Notes being exchanged shall be deemed to be $1,000. Notwithstanding the immediately preceding two sentences, in respect of any exchange of Notes for which the relevant Notice of Exchange is received by the Exchange Agent from, and including, the date of any Redemption Notice until the close of business on the Scheduled Trading Day immediately preceding the relevant Redemption Date, the Company must elect to settle such exchange in accordance with Section 14.01(b)(v).
(iv) The cash, Ordinary Shares shares of Common Stock or combination of cash and Ordinary Shares shares of Common Stock in respect of any exchange of Notes (the “Settlement Amount”) shall be computed as follows:
(A) if the Company elects (or is deemed to have elected) to satisfy its Exchange Obligation in respect of such exchange by Physical Settlement, the Company shall deliver or cause to be delivered to the exchanging Holder in respect of each $1,000 principal amount of principal of and accrued but unpaid interest on the Notes being exchanged a number of Ordinary Shares shares of Common Stock equal to the Exchange Rate in effect on the Exchange Date;
(B) if the Company elects (or is deemed to have elected) to satisfy its Exchange Obligation in respect of such exchange by Cash Settlement, the Company shall pay or cause to be paid to the exchanging Holder in respect of each $1,000 principal amount of principal of and accrued but unpaid interest on the Notes being exchanged cash in an amount equal to the sum of the Daily Exchange Values for each of the 30 40 consecutive Trading Days during the related applicable Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Exchange Obligation in respect of such exchange by Combination Settlement, the Company shall pay or deliver or cause to be deliveredthe payment or delivery of, as the case may be, to the exchanging Holder in respect of each $1,000 principal amount of principal of and accrued but unpaid interest on the Notes being exchanged, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 30 40 consecutive Trading Days during the related applicable Observation Period.
(v) The Daily Settlement Amounts (if applicable) and the Daily Exchange 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 Exchange Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional Ordinary Shareshare of Common Stock, the Company shall notify the Trustee and the Exchange Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Exchange Values, as the case may be, and the amount of cash payable in lieu of delivering fractional Ordinary Sharesshares of Common Stock. The Trustee and the Exchange Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 14.02(e), before Before any Holder of a Note shall be entitled to exchange a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and, if required, pay all transfer or similar taxes, if any, as set forth in Section 14.02(e) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Exchange Agent as set forth in the Form of Notice of Exchange (or a facsimile thereof) (a “Notice of Exchange”) at the Corporate Trust Office or the office of the Exchange Agent (if other than the Trustee) and state in writing therein the principal amount of Notes to be exchanged and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any Ordinary Shares shares of Common Stock to be delivered upon settlement of the Exchange Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the Corporate Trust Office or the office of the Exchange Agent (if other than the Trustee)Agent, (3) if required, furnish appropriate endorsements and transfer documents and documents, (4) with respect if required, pay funds equal to any exchange by a the interest payable on the next Interest Payment Date to which such Holder of a Specified Noteis not entitled as set forth in Section 14.02(h) and (5) if required, provide the Companypay all transfer or similar taxes, Iterum and the Trustee with any certificationsif any, representations and other documentation reasonably requested by the Company, Iterum or the Trustee to demonstrate the Holder’s compliance with Section 14.01(cas set forth in Section 14.02(e); provided, however, that the Notice of Exchange in clause (1) shall not be required in the case of a Mandatory Exchange. The Trustee (and, and if different, the Exchange Agent) shall notify the Company of any voluntary exchange pursuant to this Article Article 14 on the Exchange Date for such exchange. No Notice of Exchange with respect to any Notes may be surrendered by a Holder thereof if (i) 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 or (ii) the Company has delivered a Mandatory Exchange NoticeSection 15.03. If more than one Note shall be surrendered for exchange at one time by the same Holder, the Exchange Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of principal of and accrued but unpaid interest on the Notes so surrendered (or specified portions thereof to the extent permitted thereby)) so surrendered.
(c) A Note shall be deemed to have been exchanged immediately prior to the close of business on the date (the “Exchange Date”) that the Holder has complied with the requirements set forth in subsection (b) above (or, in the case of a Mandatory Exchange, the Exchange Date set forth in the Mandatory Exchange NoticeSection 14.02(b). Except as provided set forth in Section Section 14.03(b) and Section 14.07(a), the Company shall pay or cause to be delivereddeliver, as the case may be, the consideration due in respect of the Exchange Obligation (i) on the second Business Day immediately following the relevant Exchange Date, if the Company elects (or is deemed to use have elected) Physical Settlement, or (ii) on the second Business Day immediately following the last Trading Day of the relevant Observation Period, in the case of any other Settlement Method (the “Exchange Settlement Date”)Method. Subject to Section 14.01(c), if If any Ordinary Shares shares of Common Stock are due to an exchanging HoldersHolder, the Company shall issue deliver or cause to be issued, and deliver delivered to the Exchange 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 Ordinary Shares shares of Common Stock to which such Holder shall be entitled entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Exchange Obligation.
(d) In case any Note shall be surrendered for partial exchange, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unexchanged portion of the surrendered Note, without payment of any service charge by the exchanging Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such exchange being different from the name of the Holder of the old Notes surrendered for such exchange.
(e) If a Holder submits a Note for exchange, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issuance delivery of any Ordinary Shares shares of Common Stock upon exchange, unless the tax is due because the Holder requests such shares to be issued delivered in a name other than the Holder’s name, in which case the Holder shall pay that the tax. The Exchange Agent may refuse to deliver the certificates representing the Ordinary Shares shares of Common Stock being issued delivered in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock delivered upon the exchange of any Note as provided in this Article 14.
(g) Upon the exchange of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any exchange of Notes effected through any Exchange Agent other than the Trustee.
(gh) Upon exchange, a Holder shall not receive any separate additional cash payment for or additional shares of Common Stock representing accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Exchange Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not includingexcluding, the relevant Exchange Date. As a result, accrued and unpaid interest, if any, to, but not includingexcluding, the relevant Exchange Date shall be deemed to be paid in full rather than canceledcancelled, extinguished or forfeited. Upon an exchange of Notes for into a combination of cash and Ordinary Sharesshares of Common Stock, any accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such exchange. Notwithstanding the foregoing, if Notes are exchanged 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 exchange. Notes surrendered for exchange during the period from the close of business on any Regular Record Date 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 exchanged; provided that no such payment shall be required (1) for exchanges 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 exchange 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 the Redemption Date, as the case may be, shall receive the full interest payment due on the Maturity Date or the Redemption Date, as applicable, in cash regardless of whether their Notes have been exchanged following such Regular Record Date.
(hi) The Person in whose name the certificate for any Ordinary Shares delivered shares of Common Stock shall be deliverable upon exchange is registered shall be treated as a shareholder stockholder of record as of the close of business on the relevant Exchange Date (if the exchange is settled Company elects to satisfy the related Exchange Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Exchange Obligation by Combination Settlement), as the case may be. Upon an exchange of Notes, such Person shall no longer be a Holder of such Notes surrendered for exchange.
(ij) The Company shall not issue deliver any fractional Ordinary Share share of Common Stock upon any exchange of the Notes and shall instead pay cash in lieu of delivering any fractional Ordinary Share issuable share of Common Stock deliverable upon exchange based on the Daily VWAP on for the relevant Exchange Date (in the case of Physical Settlement) or based on the Daily VWAP on for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for exchange, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be issued delivered upon exchange 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
