Issuer’s Conversion Option. (a) If at any time the Last Reported Sale Price of the Common Stock has equaled or exceeded 125% of the Conversion Price then in effect for at least 20 Trading Days in any 30 Trading Day period, the Company may, at its option, elect to convert the Notes in whole or in part (an “Issuer’s Conversion Option”) into an amount of cash or a number of shares of Common Stock or a combination of both, determined in accordance with Section 11.01(d) hereof by sending (or pursuant to Section 11.09(c), having the Trustee send) an Issuer’s Conversion Notice no later than the opening of business on the third Business Day immediately following the 20th Trading Day of such 30 Trading Day period. (b) [Reserved]. (c) If the Company elects to exercise its Issuer’s Conversion Option pursuant to Section 11.09(a), the Company shall mail or cause to be delivered to each Holder subject to such Issuer’s Conversion Option a notice (an “Issuer’s Conversion Notice”) of an Issuer’s Conversion Option not more than 30 Trading Days but not less than 10 Trading Days prior to the day selected by the Company on which the Notes will be converted pursuant to the Issuer’s Conversion Option (the “Issuer’s Conversion Date”; and the date such Issuer’s Conversion Notice is sent to the Holders in the manner herein provided, the “Issuer’s Conversion Notice Date”). If the Company gives such notice, it shall also deliver a copy of such Issuer’s Conversion Notice to the Trustee. With respect to Definitive Notes, such delivery shall be by first class mail, and with respect to Global Notes, such delivery shall be pursuant to the applicable procedures of the Depositary. The notice, if sent in the manner herein provided, shall be conclusively presumed to have been duly given, whether or not any Holder receives such notice. Each Issuer’s Conversion Notice shall state: (i) the Issuer’s Conversion Notice Date; (ii) the aggregate Original Principal Amount of Notes to be converted; (iii) the CUSIP or similar number or numbers of the Notes being converted, and that no representation is made as to the correctness or accuracy of the CUSIP number, if any, listed in such notice or printed on the Notes; (iv) the Issuer’s Conversion Date; (v) that on and after the Issuer’s Conversion Date interest on the Notes to be converted will cease to accrue and the Accreted Principal Amount shall cease to accrete; (vi) the name and address of each Paying Agent and Conversion Agent and the place or places where such Notes are to be surrendered for conversion; and (vii) the Conversion Rate then in effect, the Settlement Method then in effect and the method for determining the Coupon Make-Whole Payment. (d) Notwithstanding the foregoing, the Company may only exercise its Issuer’s Conversion Option pursuant to Section 11.09(a) if, as evidenced by an Officers’ Certificate, all of the conditions listed below (the “Equity Conditions”) are satisfied on each day during the period (x) commencing ten days prior to the date an Issuer’s Conversion Notice is sent to Holders and (y) ending on the Issuer’s Conversion Date (the “Equity Conditions Measuring Period”). The Equity Conditions are as follows: (i) either (1) all shares of Common Stock issuable upon conversion of the Notes and held by a non-Affiliate of the Company shall be eligible for sale without the need for registration under any applicable federal or state securities laws or (2) a shelf registration statement registering the resale of the shares of Common Stock issuable upon conversion of the Notes has been filed by the Company and been declared effective by the SEC or is automatically effective and is available for use, and the Company expects such shelf registration statement to remain effective and available for use from the Issuer’s Conversion Notice Date until thirty (30) days following the Issuer’s Conversion Date; (ii) during the Equity Conditions Measuring Period, the Common Stock is listed or traded on The NASDAQ Global Select Market, The NASDAQ Global Market, The NASDAQ Capital Market or the New York Stock Exchange, or any of their respective successors (each, an “Eligible Market”) and shall not have been suspended from trading on such exchange or market (other than suspensions of not more than two Trading Days and occurring prior to the applicable date of determination due to business announcements by the Company) nor shall delisting or suspension by such exchange or market been threatened or pending either (A) in writing by such exchange or market or (B) by falling below the then effective minimum listing maintenance requirements of such exchange or market; (iii) any applicable shares of Common Stock to be issued upon conversion may be issued in full without violating the rules or regulations of New York Stock Exchange or any other applicable Eligible Market on which the Common Stock delivered upon conversion is then listed or trading; and (iv) no Default or Event of Default under the Indenture shall have occurred and be continuing. (e) If fewer than all of the Notes are to be converted at the option of the Company, the Issuer’s Conversion Notice shall identify the Notes to be converted (including the CUSIP or similar number or numbers, if any). In case any Note is to be converted in part only, the Issuer’s Conversion Notice shall state the portion of the Original Principal Amount thereof to be converted and shall state that, on and after the Issuer’s Conversion Date, upon surrender of such Note, a new Note or Notes in Original Principal Amount equal to the unconverted portion thereof will be issued. (f) If the Company opts to convert less than all of the Outstanding Notes, the Trustee shall select or cause to be selected the Notes or portions thereof to be converted (in Original Principal Amount of $1,000 or an integral multiple of $1,000 in excess thereof) by lot or on a pro rata basis among the Notes or by such other method as the Trustee shall deem fair and appropriate, including any method required by DTC or any successor Depositary (and in such manner as is not prohibited by applicable legal requirements). To the extent any Note or part thereof selected for Issuer’s Conversion Option is submitted for a voluntary conversion to be given effect pursuant to Section 11.01(a), the portion of such Note submitted for a voluntary conversion shall be deemed (so far as may be possible) to be from the portion selected for Issuer’s Conversion Option (with any remaining portion being voluntarily converted pursuant to Section 11.01 hereof); provided, however, for the avoidance of doubt, that any such Note submitted for a voluntary conversion in accordance with Section 11.01(a) but that is so deemed to be from the portion selected for Issuer’s Conversion Option will still receive the Coupon Make-Whole Payment, and such portion will otherwise be voluntarily converted pursuant to Section 11.01 hereof. (g) Each Holder of a Note, by the Holder’s acceptance thereof, agrees to take the following actions prior to the Issuer’s Conversion Date in respect of the portion of its Notes subject to an Issuer’s Conversion Option if deemed necessary by the Company or, in the case of Global Notes, if required by DTC or any successor Depositary: (i) surrendering the converted Note, or portion thereof, to the Conversion Agent, (ii) furnishing appropriate endorsements and transfer documents if required by the Security Registrar or the Conversion Agent, (iii) if the Note is held in book-entry form, completing and delivering to the Depositary appropriate instructions pursuant to the Depositary’s book-entry conversion programs, (iv) paying the funds, if any, required by Section 3.05 and, if required, all taxes or duties, if any, and (v) any other action necessary to effectuate the Issuer’s Conversion Option as may be reasonably requested by the Company. In the event that a Holder does not take any of the actions set forth in the immediately preceding sentence prior to the Issuer’s Conversion Date, each Holder of a Note, by the Holder’s acceptance thereof, authorizes and directs the Company to take any action on the Holder’s behalf to effect the Issuer’s Conversion Option and appoints the Company such Holder’s attorney-in-fact for any and all such purposes. Such appointment as attorney-in-fact is coupled with an interest and is irrevocable so long as any Note is Outstanding. Upon presentation of any Note converted in part only, the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder thereof, at the expense of the Company, a new Note or Notes, of authorized denominations, in Original Principal Amount equal to the unconverted portion of the Note or Notes so presented (subject to the applicable procedures of the Depositary in the case of Global Notes). (h) Upon conversion pursuant to an Issuer’s Conversion Option, interest on the Notes or portion of Notes so converted shall cease to accrue, and the Accreted Principal Amount shall cease to accrete, and such Notes shall cease to be entitled to any benefit under the Indenture, and the Holders thereof shall have no right in respect of such Notes except the right to receive the shares of Common Stock and cash to which they are entitled pursuant to Section 11.01(d) and this Section 11.09. (i) The Trustee has no duty to verify whether the Equity Conditions have been satisfied and may conclusively rely on the Officers’ Certificate delivered in connection therewith. (j) If any of the provisions of this Section 11.09 are inconsistent with applicable law at the time of such Issuer’s Conversion Option, such law shall govern.
Appears in 1 contract
Samples: First Supplemental Indenture (Goodrich Petroleum Corp)
Issuer’s Conversion Option. (a) If The Company may, at its option, elect to convert the Securities in whole or in part (an “Issuer’s Conversion Option”) at any time if the Last Reported Sale Volume-Weighted Average Price of the Common Stock has equaled or exceeded 125150% of the Conversion Price then in effect for at least 20 Trading Days in any 30 Trading Day period, ending within five Trading Days prior to the Company may, at its option, elect to convert date of the Notes in whole or in part Issuer’s Conversion Notice (an the “Issuer’s Conversion OptionPrice”) into an amount of cash or a number of shares of Common Stock or a combination of both, determined in accordance with Section 11.01(d) hereof by sending (or pursuant to Section 11.09(c), having the Trustee send) an Issuer’s Conversion Notice no later than the opening of business on the third Business Day immediately following the 20th Trading Day of such 30 Trading Day period.
(b) [Reserved].
(c) If the Company elects to exercise its Issuer’s Conversion Option pursuant to Section 11.09(a10.15(a), the Company or, at the written request and expense of the Company, the Trustee, shall mail or cause to be delivered to each Holder subject to such Issuer’s Conversion Option a notice (an “Issuer’s Conversion Notice”) of an Issuer’s Conversion Option not more than 30 Trading Days but not less than 10 Trading Days prior to the day selected by the Company on which the Notes will be converted pursuant to the Issuer’s Conversion Option (the “Issuer’s Conversion Date”; and the date such Issuer’s Conversion Notice is sent to the Holders in the manner herein provided, the “Issuer’s Conversion Notice Date”). If the Company gives such notice, it shall also deliver a copy of such Issuer’s Conversion Notice to the Trustee. With respect If such notice is to Definitive Notesbe given by the Trustee, the Company shall prepare and provide the form and content of such delivery Issuer’s Conversion Notice to the Trustee. Such mailing shall be by first class mail, and with respect to Global Notes, such delivery shall be mail or delivered electronically pursuant to the applicable procedures of the Depositary. The notice, if sent mailed in the manner herein provided, shall be conclusively presumed to have been duly given, whether or not any Holder receives such notice. The Issuer’s Conversion Option will occur on a date (the “Issuer’s Conversion Date”) selected by the Company that is not less than 10 Trading Days or more than 30 Trading Days after the date (the “Issuer’s Conversion Notice Date”) on which such Issuer’s Conversion Notice is mailed to such Holders in the manner herein provided. Each Issuer’s Conversion Notice shall state:
(i) the Issuer’s Conversion Notice Date;
(ii) the aggregate Original Principal Amount principal amount of Notes Securities to be converted;
(iii) the CUSIP or similar number or numbers of the Notes Securities being converted, and that no representation is made as to the correctness or accuracy of the CUSIP number, if any, listed in such notice or printed on the Notes;
(iv) the Issuer’s Conversion Date;
(v) that on and after the Issuer’s Conversion Date interest on the Notes Securities to be converted will cease to accrue and the Accreted Principal Amount shall cease to accreteaccrue;
(vi) the name and address of each Paying Agent and Conversion Agent and the place or places where such Notes Securities are to be surrendered for conversion; and
(vii) the Conversion Rate Price then in effect, the Settlement Method then in effect and the method for determining the Coupon Make-Whole Payment.
(dc) Notwithstanding the foregoing, the Company may only exercise its Issuer’s Conversion Option pursuant to Section 11.09(a10.15(a) if, as evidenced by an Officers’ Certificate, all of the conditions listed below (the “Equity Conditions”) are satisfied on each day during the period (x) commencing ten days prior to the date an Issuer’s Conversion Notice is sent mailed to Holders and (y) ending on the Issuer’s Conversion Date (the “Equity Conditions Measuring Period”). The Equity Conditions are as follows:
(i) either (1) all shares of Common Stock issuable upon conversion of the Notes Securities and held by a non-Affiliate of the Company shall be eligible for sale without the need for registration under any applicable federal or state securities laws or (2) a shelf registration statement registering the resale of the shares of Common Stock issuable upon conversion of the Notes Securities has been filed by the Company and been declared effective by the SEC or is automatically effective and is available for use, and the Company expects such shelf registration statement to remain effective and available for use from the Issuer’s Conversion Notice Date until thirty (30) days following the Issuer’s Conversion Date;
(ii) during the Equity Conditions Measuring Period, the Common Stock is listed or traded on The NASDAQ Global Select Market, The NASDAQ Global Market, The NASDAQ Capital Market or the New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or any of their respective successors (each, an “Eligible Market”successors) and shall not have been suspended from trading on such exchange or market (other than suspensions of not more than two Trading Days and occurring prior to the applicable date of determination due to business announcements by the Company) nor shall delisting or suspension by such exchange or market been threatened or pending either (A) in writing by such exchange or market or (B) by falling below the then effective minimum listing maintenance requirements of such exchange or market;
(iii) prior to the date of mailing of an Issuer’s Conversion Option, to the extent any Securities have been delivered to the Company for conversion in accordance with the terms of the Securities, the Company shall have delivered shares of Common Stock upon conversion of the Securities to the Holders in accordance with Section 10.02;
(iv) any applicable shares of Common Stock to be issued upon conversion may be issued in full without violating the rules or regulations of The New York Stock Exchange Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or any other applicable Eligible Market of their respective successors) on which the Common Stock delivered upon conversion is then listed or trading; and
(ivv) no Default or Event of Default under the this Indenture shall have occurred and be continuing.
(ed) If fewer than all of the Notes Securities are to be converted at the option of the Company, the Issuer’s Conversion Notice shall identify the Notes Securities to be converted (including the CUSIP or similar number or numbers, if any). In case any Note Security is to be converted in part only, the Issuer’s Conversion Notice shall state the portion of the Original Principal Amount principal amount thereof to be converted and shall state that, on and after the Issuer’s Conversion Date, upon surrender of such NoteSecurity, a new Note Security or Notes Securities in Original Principal Amount principal amount equal to the unconverted portion thereof will be issued.
(fe) If the Company opts to convert less than all of the Outstanding Notesoutstanding Securities, the Trustee shall (subject, in the case of conversion of any Global Security, to the applicable procedures of the Depositary) select or cause to be selected the Notes Securities or portions thereof of the Global Securities or the Securities in certificated form to be converted (in Original Principal Amount principal amounts of $1,000 or an integral multiple of $1,000 in excess thereof) by lot or lot, on a pro rata basis among the Notes or by such other another method as the Trustee shall deem deems fair and appropriate, including any method required by DTC or any successor Depositary (and in such manner as is not prohibited by applicable legal requirements). To the extent any Note Security or part thereof selected for Issuer’s Conversion Option is submitted for a voluntary conversion to be given effect pursuant to Section 11.01(a10.02(g), the portion of such Note Security submitted for a voluntary conversion shall be deemed (so far as may be possible) to be from the portion selected for Issuer’s Conversion Option (with any remaining portion being voluntarily converted pursuant to Section 11.01 for all purposes hereof); provided, however, for the avoidance of doubt, however that any such Note Security submitted for a voluntary conversion in accordance with Section 11.01(a) but that is so deemed to be from the portion selected for Issuer’s Conversion Option will still receive the Coupon Make-Whole Payment, and such portion will otherwise given effect pursuant to Section 10.02(g) shall be voluntarily converted pursuant to Section 11.01 Sections 10.01 and 10.02 hereof.
(gf) Each Holder of a NoteSecurity, by the Holder’s acceptance thereof, agrees to take the following actions prior to the Issuer’s Conversion Date in respect of the portion of its Notes Securities subject to an Issuer’s Conversion Option if deemed necessary by the Company or, in the case of Global Notes, if required by DTC or any successor DepositaryOption: (i) surrendering the converted NoteSecurity, or portion thereof, to the Conversion Agent, (ii) furnishing appropriate endorsements and transfer documents if required by the Security Registrar or the Conversion Agent, (iii) if the Note Security is held in book-entry form, completing and delivering to the Depositary appropriate instructions pursuant to the Depositary’s book-entry conversion programs, and (iv) paying the funds, if any, required by Section 3.05 10.02(c) and, if required, all taxes or duties, if any, and (v) any other action necessary to effectuate the Issuer’s Conversion Option as may be reasonably requested by the Company. In the event that a Holder does not take any of the actions set forth in the immediately preceding sentence prior to the Issuer’s Conversion Date, each Holder of a NoteSecurity, by the Holder’s acceptance thereof, authorizes and directs the Company to take any action on the Holder’s behalf to effect the Issuer’s Conversion Option and appoints the Company such Holder’s attorney-in-fact for any and all such purposes. Such appointment as attorney-in-fact is coupled with an interest and is irrevocable so long as any Note Security is Outstandingoutstanding. Upon presentation of any Note Security converted in part only, the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder thereof, at the expense of the Company, a new Note Security or NotesSecurities, of authorized denominations, in Original Principal Amount principal amount equal to the unconverted portion of the Note Security or Notes Securities so presented (subject to the applicable procedures of the Depositary in the case of Global NotesSecurities).
(hg) Upon conversion pursuant to an Issuer’s Conversion Optionconversion, interest on the Notes Security or portion of Notes Securities so converted called for Issuer’s Conversion Option shall cease to accrue, and the Accreted Principal Amount shall cease to accrete, and such Notes Securities shall cease to be entitled to any benefit under the Indenture, and the Holders thereof shall have no right in respect of such Notes Securities except the right to receive the shares of Common Stock and cash cash, if any, to which they are entitled pursuant to Section 11.01(d10.02 (other than Section 10.02(c)) and this Section 11.0910.15.
(ih) The Trustee has no duty to verify whether the Equity Conditions have been satisfied and may conclusively rely on the Officers’ Certificate delivered in connection therewith.
(ji) If any of the provisions of this Section 11.09 10.15 are inconsistent with applicable law at the time of such Issuer’s Conversion Option, such law shall govern.
Appears in 1 contract
Issuer’s Conversion Option. (a) If at any time prior to the Last Reported Maturity Date, the Closing Sale Price of the Common Stock has equaled or exceeded 125110% of the Conversion Price then in effect for at least 20 Trading Days in any 30 Trading Day periodperiod (an “Issuer’s Conversion Trigger Event”), the Company may, at its option, elect to convert the Original Principal Amount of the Notes in whole or but not in part (an the “Issuer’s Conversion Option”) into an amount of cash or a number of cash, shares of Common Stock or a combination of boththereof, determined in accordance with Section 11.01(d5.03(a) hereof hereof, by sending (or pursuant to Section 11.09(c), having instructing the Trustee to send) an Issuer’s Conversion Notice no later than the opening Open of business Business on the third Business Day immediately following the 20th Trading Day of such 30 Trading Day periodIssuer’s Conversion Trigger Event.
(b) [Reserved].
(c) If the Company elects to exercise its Issuer’s Conversion Option pursuant to Section 11.09(a5.10(a), the Company shall mail or cause to be delivered to each Holder subject (with a copy to such Issuer’s the Trustee and the Conversion Option Agent) a notice (an “Issuer’s Conversion Notice”) of an Issuer’s Conversion Option not more than 30 Trading Days but not less than 10 Trading Days prior to the day selected by the Company on which the Notes will be converted pursuant to the Issuer’s Conversion Option (the “Issuer’s Conversion Date”; except that in cases in which the Company elects to satisfy its Conversion Obligation by Cash Settlement or Combination Settlement, the Company shall mail or cause to be delivered to each Holder (with a copy to the Trustee and the Conversion Agent) a notice of an Issuer’s Conversion Option not more than 45 Trading Days but not less than 30 Trading Days prior to the day selected by the Company on which the Notes will be converted pursuant to the Issuer’s Conversion Option; and the date such Issuer’s Conversion Notice is sent to the Holders in the manner herein provided, the “Issuer’s Conversion Notice Date”). If ; provided that, the Company gives such notice, it shall also deliver a copy of such Company’s right to exercise the Issuer’s Conversion Option shall be suspended during the period beginning on the date of the Fundamental Change Repurchase Notice to and continuing to, and including, the Trusteeapplicable Fundamental Change Repurchase Date. With respect to Definitive certificated Notes, such delivery shall be by first class mail, and with respect to Global NotesNotes represented by global notes, such delivery shall be pursuant to the applicable procedures of the Depositary. The noticeIssuer’s Conversion Notice, if sent in the manner herein provided, shall be conclusively presumed to have been duly given, whether or not any Holder receives such notice. Each Issuer’s Conversion Notice shall state:
(i) the Issuer’s Conversion Notice Date;
(ii) the aggregate Original Principal Amount of Notes to be converted;
(iii) the CUSIP or similar number or numbers of the Notes being converted, and that no representation is made as to the correctness or accuracy of the CUSIP number, if any, listed in such notice or printed on the Notes;
(iv) the Issuer’s Conversion Date;
(viii) that on and after the Issuer’s Conversion Date interest on the Notes to be converted will cease to accrue and the Accreted Principal Amount shall Notes will cease to accretebe outstanding;
(viiv) the name and address of each Paying Agent and Conversion Agent and the place or places where such Notes are to be surrendered for conversionsurrendered;
(v) that the Notes subject to the Issuer’s Conversion Option may still be voluntarily converted pursuant to Section 5.01 on or prior to the close of Business on the Business Day immediately preceding the Issuer’s Conversion Date; and
(viivi) the Conversion Rate then in effect, the Settlement Method then in effect and the method for determining the Coupon Make-Whole PaymentSpecified Dollar Amount.
(dc) Notwithstanding the foregoing, the Company may only exercise its Issuer’s Conversion Option pursuant to Section 11.09(a5.10(a) if, as evidenced by an Officers’ Certificate, all of the conditions listed below (the “Equity Conditions”) are satisfied on each day during the period (x) commencing ten days prior to on the date an Issuer’s Conversion Notice is sent to Holders Date and (y) ending on the Issuer’s Conversion Date (the “Equity Conditions Measuring Period”). The Equity Conditions are as follows:
(i) either (1) all any shares of Common Stock issuable upon conversion of the Notes and held by a non-Affiliate of the Company shall be eligible for sale without the need for registration under any applicable federal or state securities laws or (2) a shelf registration statement registering the resale of the shares of Common Stock issuable upon conversion of the Notes has been filed by the Company and been declared effective by the SEC or is automatically effective and is available for use, and the Company expects such shelf registration statement to remain effective and available for use from the Issuer’s Conversion Notice Date until thirty (30) days following the Issuer’s Conversion Date;
(ii) during the Equity Conditions Measuring Period, the Common Stock is listed or traded on The NASDAQ Global Select Market, The NASDAQ Global Market, The NASDAQ Capital Market or the New York Stock Exchange, or any of their respective successors (each, an “Eligible Market”) and shall not have been suspended from trading on such exchange or market (other than suspensions of not more than two Trading Days and occurring prior to the applicable date of determination due to business announcements by the Company) nor shall delisting or suspension by such exchange or market been threatened or pending either (A) in writing by such exchange or market or (B) by falling below the then effective minimum listing maintenance requirements of such exchange or market;
(iii) any applicable shares of Common Stock to be issued upon conversion may be issued in full without violating the rules or regulations of New York Stock Exchange The NASDAQ Global Select Market or any other applicable Eligible Market on which the Common Stock delivered upon conversion is then listed or trading; and
(iv) prior to the Issuer’s Conversion Notice Date , to the extent any Notes have been delivered to the Company for exchange in accordance with the terms of the Notes, the Company shall have delivered and paid the number of shares of Common Stock and the amount of cash due upon conversion of the Notes to the Holders in accordance with Section 5.03, and no other Default or Event of Default under the Indenture shall have occurred and be continuing.
(e) If fewer than all of the Notes are to be converted at the option of the Company, the Issuer’s Conversion Notice shall identify the Notes to be converted (including the CUSIP or similar number or numbers, if any). In case any Note is to be converted in part only, the Issuer’s Conversion Notice shall state the portion of the Original Principal Amount thereof to be converted and shall state that, on and after the Issuer’s Conversion Date, upon surrender of such Note, a new Note or Notes in Original Principal Amount equal to the unconverted portion thereof will be issued.
(f) If the Company opts to convert less than all of the Outstanding Notes, the Trustee shall select or cause to be selected the Notes or portions thereof to be converted (in Original Principal Amount of $1,000 or an integral multiple of $1,000 in excess thereof) by lot or on a pro rata basis among the Notes or by such other method as the Trustee shall deem fair and appropriate, including any method required by DTC or any successor Depositary (and in such manner as is not prohibited by applicable legal requirements). To the extent any Note or part thereof selected for Issuer’s Conversion Option is submitted for a voluntary conversion to be given effect pursuant to Section 11.01(a), the portion of such Note submitted for a voluntary conversion shall be deemed (so far as may be possible) to be from the portion selected for Issuer’s Conversion Option (with any remaining portion being voluntarily converted pursuant to Section 11.01 hereof); provided, however, for the avoidance of doubt, that any such Note submitted for a voluntary conversion in accordance with Section 11.01(a) but that is so deemed to be from the portion selected for Issuer’s Conversion Option will still receive the Coupon Make-Whole Payment, and such portion will otherwise be voluntarily converted pursuant to Section 11.01 hereof.
(gd) Each Holder of a Note, by the Holder’s acceptance thereof, agrees to take the following actions prior to the Issuer’s Conversion Date in respect of the portion of its Notes subject to an Issuer’s Conversion Option if deemed necessary by the Company or, in the case of Global NotesNotes represented by global notes, if required by DTC or any successor Depositary: (i) surrendering the converted Note, or portion thereof, Note to the Conversion Agent, (ii) furnishing appropriate endorsements and transfer documents if required by the Security Registrar or the Conversion Agent, (iii) if the Note is held in book-entry form, completing and delivering to the Depositary appropriate instructions pursuant to the Depositary’s book-entry conversion programs, (iv) paying the funds, if any, required by Section 3.05 2.04 and, if required, all taxes or duties, if any, and (v) any other action necessary to effectuate the Issuer’s Conversion Option as may be reasonably requested by the Company. In the event that a Holder does not take any of the actions set forth in the immediately preceding sentence prior to the Issuer’s Conversion Date, each Holder of a Note, by the Holder’s acceptance thereof, authorizes and directs the Company to take any action on the Holder’s behalf to effect the Issuer’s Conversion Option and appoints the Company such Holder’s attorney-in-fact for any and all such purposes. Such appointment as attorney-in-fact is coupled with an interest and is irrevocable so long as any Note is Outstanding. Upon presentation of any Note converted in part only, the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder thereof, at the expense of the Company, a new Note or Notes, of authorized denominations, in Original Principal Amount equal to the unconverted portion of the Note or Notes so presented (subject to the applicable procedures of the Depositary in the case of Global Notes).
(he) Upon conversion pursuant to an Issuer’s Conversion Option, interest on the Notes or portion of Notes so converted shall cease to accrue, and the Accreted Principal Amount shall cease to accrete, accrue and such Notes shall cease to be outstanding and cease to be entitled to any benefit under the Indenture, and the Holders thereof shall have no right in respect of such Notes except the right to receive the cash, shares of Common Stock and cash or combination thereof, as applicable, to which they are entitled pursuant to Section 11.01(d5.03(a) and this Section 11.095.10.
(if) The Trustee has and the Conversion Agent have no duty to verify whether the Equity Conditions have been satisfied and may conclusively rely on the Officers’ Certificate delivered in connection therewith.
(j) If any of the provisions of this Section 11.09 are inconsistent with applicable law at the time of such Issuer’s Conversion Option, such law shall govern.
Appears in 1 contract
Issuer’s Conversion Option. (a) If at any time the Last Reported Sale Price of the Common Stock has equaled or exceeded 125% of the Conversion Price then in effect for at least 20 Trading Days in any 30 Trading Day period, the The Company may, at its option, elect to convert the Notes in whole or in part (an “Issuer’s Conversion Option”) into an amount at any time if the Volume Weighted Average Price of cash or a number of shares of the Common Stock has equaled or a combination exceeded 130% of boththe Conversion Price then in effect for at least 20 Trading Days in any 30 Trading Day period, determined in accordance with Section 11.01(d) hereof by sending (or pursuant ending within five Trading Days prior to Section 11.09(c), having the Trustee send) an date of the Issuer’s Conversion Notice no later than (the opening of business on the third Business Day immediately following the 20th Trading Day of such 30 Trading Day period“Issuer’s Conversion Price”).
(b) [Reserved]If the Company elects to exercise its Issuer’s Conversion Option on or prior to the Stated Maturity, the Company shall increase the Conversion Rate for the Notes so converted by the number of Additional Shares determined in accordance with the table set forth in Section 6.05(e). At the Company’s option, in lieu of increasing the Conversion Rate as described in this 6.11 in the event of an Issuer’s Conversion Option, the Company may elect to make a cash payment in respect of the Additional Shares. Such cash payment to any Holder will be equal to the number of Additional Shares issuable upon such Issuer’s Conversion Option determined by reference to the table in Section 6.05(e) multiplied by the Stock Price in respect of such Issuer’s Conversion Option. Any such election by the Company will be disclosed in the Issuer’s Conversion Notice. Once this notice has been provided, the Company may not modify or withdraw its election.
(c) If the Company elects to exercise its Issuer’s Conversion Option pursuant to Section 11.09(a6.11(a), the Company or, at the written request and expense of the Company, the Trustee, shall mail or cause to be delivered to each Holder subject to such Issuer’s Conversion Option a notice (an “Issuer’s Conversion Notice”) of an Issuer’s Conversion Option not more than 30 Trading Days but not less than 10 Trading Days prior to the day selected by the Company on which the Notes will be converted pursuant to the Issuer’s Conversion Option (the “Issuer’s Conversion Date”; and the date such Issuer’s Conversion Notice is sent to the Holders in the manner herein provided, the “Issuer’s Conversion Notice Date”). If the Company gives such notice, it shall also deliver a copy of such Issuer’s Conversion Notice to the Trustee. With respect If such notice is to Definitive Notesbe given by the Trustee, the Company shall prepare and provide the form and content of such delivery Issuer’s Conversion Notice to the Trustee. Such mailing shall be by first class mail, and with respect to Global Notes, such delivery shall be pursuant to the applicable procedures of the Depositary. The notice, if sent mailed in the manner herein provided, shall be conclusively presumed to have been duly given, whether or not any Holder receives such notice. The Issuer’s Conversion Option will occur on a date (the “Issuer’s Conversion Date”) 33 selected by the Company that is not less than 10 Trading Days or more than 30 Trading Days after the date (the “Issuer’s Conversion Notice Date”) on which such Issuer’s Conversion Notice is mailed to such Holders in the manner herein provided. Each Issuer’s Conversion Notice shall state:
(i) the Issuer’s Conversion Notice Date;
(ii) the aggregate Original Principal Amount of Notes to be converted;
(iii) the CUSIP or similar number or numbers of the Notes being converted, and that no representation is made as to the correctness or accuracy of the CUSIP number, if any, listed in such notice or printed on the Notes;
(iv) the Issuer’s Conversion Date;
(v) that on and after the Issuer’s Conversion Date interest on the Notes to be converted will cease to accrue and the Accreted Principal Amount shall cease to accrete;
(vi) the name and address of each Paying Agent and Conversion Agent and the place or places where such Notes are to be surrendered for conversion;
(vii) if any, the number of Additional Shares by which the Conversion Rate of the converted Notes shall be increased and whether the Company shall deliver cash in lieu of the Additional Shares as described in Section 6.11(b); and
(viiviii) the Conversion Rate Price then in effect, the Settlement Method then in effect and the method for determining the Coupon Make-Whole Payment.
(d) Notwithstanding the foregoing, the Company may only exercise its Issuer’s Conversion Option pursuant to Section 11.09(a6.11(a) if, as evidenced by an Officers’ Certificate, all of the conditions listed below (the “Equity Conditions”) are satisfied on each day during the period (x) commencing ten days prior to the date an Issuer’s Conversion Notice is sent mailed to Holders and (y) ending on the Issuer’s Conversion Date (the “Equity Conditions Measuring Period”). The Equity Conditions are as follows:
(i) either (1) all shares of Common Stock issuable upon conversion of the Notes and held by a non-Affiliate of the Company shall be eligible for sale without the need for registration under any applicable federal or state securities laws or (2) a shelf registration statement registering the resale of the shares of Common Stock issuable upon conversion of the Notes has been filed by the Company and been declared effective by the SEC or is automatically effective and is available for use, and the Company expects such shelf registration statement to remain effective and available for use from the Issuer’s Conversion Notice Date until thirty (30) days following the Issuer’s Conversion Date;
(ii) during the Equity Conditions Measuring Period, the Common Stock is listed or traded on The NASDAQ Global Select Market, The NASDAQ Global Market, The NASDAQ Capital Market or the New York Stock Exchange, or any of their respective successors (each, an “Eligible Market”) and shall not have been suspended from trading on such exchange or market (other than suspensions of not more than two Trading Days and occurring prior to the applicable date of determination due to business announcements by the Company) nor shall delisting or suspension by such exchange or market been threatened or pending either (A) in writing by such exchange or market or (B) by falling below the then effective minimum listing maintenance requirements of such exchange or market;
(iii) prior to the date of mailing of an Issuer’s Conversion Option, to the extent any Notes have been delivered to the Company for conversion in accordance with the terms of the Notes, the Company shall have delivered shares of Common Stock upon conversion of the Notes to the Holders in accordance with Section 6.02;
(iv) any applicable shares of Common Stock to be issued upon conversion may be issued in full without violating the rules or regulations of New York Stock Exchange The NASDAQ Global Select Market or any other applicable Eligible Market on which the Common Stock delivered upon conversion is then listed or trading; and
(ivv) no Default or Event of Default under the this Indenture shall have occurred and be continuing.
(e) If fewer than all of the Notes are to be converted at the option of the Company, the Issuer’s Conversion Notice shall identify the Notes to be converted (including the CUSIP or similar number or numbers, if any). In case any Note is to be converted in part only, the Issuer’s Conversion Notice shall state the portion of the Original Principal Amount thereof to be converted and shall state that, on and after the Issuer’s Conversion Date, upon surrender of such Note, a new Note or Notes in Original Principal Amount equal to the unconverted portion thereof will be issued.
(f) If the Company opts to convert less than all of the Outstanding outstanding Notes, the Trustee shall (subject, in the case of conversion of any Global Note, to the Applicable Procedures) select or cause to be selected the Notes or portions thereof of the Global Notes or the Notes in certificated form to be converted (in Original Principal Amount Amounts of $1,000 2,000 or an integral multiple of $1,000 in excess thereof) by lot or lot, on a pro rata basis among the Notes or by such other another method as the Trustee shall deem deems fair and appropriate, including any method required by DTC or any successor Depositary (and in such manner as is not prohibited by applicable legal requirements). To the extent any Note or part thereof selected for Issuer’s Conversion Option is submitted for a voluntary conversion to be given effect pursuant to Section 11.01(a6.03(e), the portion of such Note submitted for a voluntary conversion shall be deemed (so far as may be possible) to be from the portion selected for Issuer’s Conversion Option (with any remaining portion being voluntarily converted pursuant to Section 11.01 for all purposes hereof); provided, however, for the avoidance of doubt, however that any such Note submitted for a voluntary conversion in accordance with Section 11.01(a) but that is so deemed to be from the portion selected for Issuer’s Conversion Option will still receive the Coupon Make-Whole Payment, and such portion will otherwise given effect pursuant to Section 6.03(e) shall be voluntarily converted pursuant to Section 11.01 6.01 and 6.03 hereof.
(g) Each Holder of a Note, by the Holder’s acceptance thereof, agrees to take the following actions prior to the Issuer’s Conversion Date in respect of the portion of its Notes subject to an Issuer’s Conversion Option if deemed necessary by the Company or, in the case of Global Notes, if required by DTC or any successor DepositaryOption: (i) surrendering the converted Note, or portion thereof, to the Conversion Agent, (ii) furnishing appropriate endorsements and transfer documents if required by the Security Registrar or the Conversion Agent, (iii) if the Note is held in book-entry form, completing and delivering to the Depositary appropriate instructions pursuant to the Depositary’s book-entry conversion programs, and (iv) paying the funds, if any, required by Section 3.05 6.03(b) and, if required, all taxes or duties, if any, and (v) any other action necessary to effectuate the Issuer’s Conversion Option as may be reasonably requested by the Company. In the event that a Holder does not take any of the actions set forth in the immediately preceding sentence prior to the Issuer’s Conversion Date, each Holder of a Note, by the Holder’s acceptance thereof, authorizes and directs the Company to take any action on the Holder’s behalf to effect the Issuer’s Conversion Option and appoints the Company such Holder’s attorney-in-fact for any and all such purposes. Such appointment as attorney-in-fact is coupled with an interest and is irrevocable so long as any Note is Outstanding. outstanding Upon presentation of any Note converted in part only, the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder thereof, at the expense of the Company, a new Note or Notes, of authorized denominations, in Original Principal Amount equal to the unconverted portion of the Note or Notes so presented (subject to the applicable procedures Applicable Procedures of the Depositary in the case of Global Notes).
(h) Upon conversion pursuant to an Issuer’s Conversion Optionconversion, interest on the Notes or portion of Notes so converted called for Issuer’s Conversion Option shall cease to accrue, and the Accreted Principal Amount shall cease to accrete, and such Notes shall cease to be entitled to any benefit under the Indenture, and the Holders thereof shall have no right in respect of such Notes except the right to receive the shares of Common Stock and cash cash, if any, to which they are entitled pursuant to Section 11.01(d) 6.02 and this Section 11.096.11.
(i) The Trustee has no duty to verify whether the Equity Conditions have been satisfied and may conclusively rely on the Officers’ Officer’s Certificate delivered in connection therewith.
(j) If any of the provisions of this Section 11.09 6.11 are inconsistent with applicable law at the time of such Issuer’s Conversion Option, such law shall govern.
Appears in 1 contract
Samples: Indenture (Ciena Corp)
