Conversion Privilege. (a) Subject to and upon compliance with the provisions of this Article 14, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the Business Day immediately preceding August 15, 2029 under the circumstances and during the periods set forth in Section 14.01(b), and (ii) regardless of the conditions described in Section 14.01(b), on or after August 15, 2029 and prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 62.3539 shares of Common Stock (subject to adjustment as provided in this Article 14, the “Conversion Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.02, the “Conversion Obligation”). (a) (i) Prior to the close of business on the Business Day immediately preceding August 15, 2029, a Holder may surrender all or any portion of its Notes for conversion at any time during the five Business Day period immediately after any five consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this subsection (b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on each such Trading Day and the Conversion Rate on each such Trading Day. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this subsection (b)(i) and the definition of Trading Price set forth in this Indenture. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes unless the Company has requested such determination, and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes) unless a Holder of at least $1,000,000 aggregate principal amount of Notes requests in writing that the Company make such a determination and provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the Conversion Rate on such Trading Day, at which time the Company shall instruct three nationally recognized securities dealers to deliver bids and instruct the Bid Solicitation Agent (if other than the Company) to determine, or if the Company is acting as Bid Solicitation Agent, the Company shall determine, the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not instruct the Bid Solicitation Agent to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentence, or if the Company instructs the Bid Solicitation Agent to obtain bids and the Bid Solicitation Agent fails to make such determination, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, then, in either case, the Trading Price per $1,000 principal amount of Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company shall so notify in writing the Holders, the Trustee and the Conversion Agent (if other than the Trustee). If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate for such date, the Company shall so notify in writing the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee). (i) If, prior to the close of business on the Business Day immediately preceding August 15, 2029, the Company elects to: (A) issue to all or substantially all holders of the Common Stock any rights, options or warrants (other than in connection with a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock) entitling them, for a period of not more than 45 calendar days after the announcement date of such issuance, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance; or (B) distribute to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase securities of the Company (other than pursuant to a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock), which distribution has a per share value, as reasonably determined by the Board of Directors, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution, then, in either case, the Company shall notify in writing all Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) at least 30 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan, no later than the Business Day after the Company becomes aware that such separation has occurred or will occur); provided, however, that if the Company elects Physical Settlement (to the extent that the Company has not elected another Settlement Method to apply, including pursuant to Section 14.02) in the applicable notice in respect of any conversions that occurs from, and including, the date the Company provides such notice to, and including, the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or issuance (or, if earlier, the date the Company announces that such issuance or distribution will not take place) (the “Distribution Trigger Irrevocable Physical Settlement Period”), the Company shall be permitted to provide no less than 10 Scheduled Trading Days’ notice prior to the Ex-Dividend Date for the applicable issuance or distribution, in which case the Company shall be required to settle all conversions of Notes with a Conversion Date occurring during the Distribution Trigger Irrevocable Physical Settlement Period by Physical Settlement, and the Company shall describe the same in such notice. Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at any time until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take place, in each case, even if the Notes are not otherwise convertible at such time. Notwithstanding the foregoing, Holders may not convert their Notes under this Section 14.01(b)(ii) if they participate (other than in the case of a share split or share combination) at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described under this Section 14.01(b)(ii)(A) or (B) without having to convert their Notes as if they held a number of shares of Common Stock equal to the then-effective Conversion Rate multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. Neither the Trustee not the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether an issuance or distribution described in this clause (ii) has occurred. (ii) If a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section 15.02, or if the Company is a party to a Share Exchange Event (other than a Share Exchange Event that is solely for the purpose of changing the Company’s jurisdiction of organization that does not constitute a Fundamental Change or Make-Whole Fundamental Change) that occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, in each case, pursuant to which the Common Stock would be converted into cash, securities or other assets, all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the effective date of the transaction until the earlier of (x) 35 Trading Days after the effective date of such transaction or, if such transaction also constitutes a Fundamental Change, until the close of business on the Business Day immediately preceding the related Fundamental Change Repurchase Date and (y) the second Scheduled Trading Day immediately preceding the Maturity Date. The Company shall notify in writing Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the effective date of such transaction. Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether a Fundamental Change or a Make-Whole Fundamental Change has occurred. (iii) Prior to the close of business on the Business Day immediately preceding August 15, 2029, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar quarter commencing after the calendar quarter ending on March 31, 2025 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day. The Company shall determine at the beginning of each calendar quarter commencing after March 31, 2025 whether the Notes may be surrendered for conversion in accordance with this clause (iv) and shall provide written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) if the Notes become convertible in accordance with this clause (iv). Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether the condition set forth in this clause (iv) has been met. (iv) If the Company calls any or all of the Notes for redemption pursuant to Article 16 prior to the close of business on the Business Day immediately preceding August 15, 2029, then a Holder may surrender all or any part of such of its Notes as called for redemption for conversion at any time prior to the close of business on the second Scheduled Trading Day prior to the Redemption Date, even if the Notes are not otherwise convertible at such time. After that time, the right to convert such Notes pursuant to this Section 14.01(b)(v) shall expire, unless the Company defaults in the payment of the Redemption Price, in which case a Holder of Notes may convert its Notes until the Redemption Price has been paid or duly provided for.
Appears in 2 contracts
Sources: Indenture (Alignment Healthcare, Inc.), Indenture (Alignment Healthcare, Inc.)
Conversion Privilege. (a) Subject to and upon compliance with the provisions of this Article 14, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the Business Day immediately preceding August June 15, 2029 2023 under the circumstances and during the periods set forth in Section 14.01(b), and (ii) regardless of the conditions described in Section 14.01(b), on or after August June 15, 2029 2023 and prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 62.3539 40.1405 shares of Common Stock (subject to adjustment as provided in this Article 14, the “Conversion Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.02, the “Conversion Obligation”).
(ab) (i) Prior to the close of business on the Business Day immediately preceding August June 15, 20292023, a Holder may surrender all or any portion of its Notes for conversion at any time during the five Business Day period immediately after any five ten consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this subsection (b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on each such Trading Day and the Conversion Rate on each such Trading Day. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this subsection (b)(i) and the definition of Trading Price set forth in this Indenture. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes unless the Company has requested such determination, and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes) unless a Holder of at least $1,000,000 aggregate principal amount of Notes requests in writing that the Company make such a determination and provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the Conversion Rate on such Trading Day, at which time the Company shall instruct three nationally recognized securities dealers to deliver bids and instruct the Bid Solicitation Agent (if other than the Company) to determine, or if the Company is acting as Bid Solicitation Agent, the Company shall determine, determine the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not instruct the Bid Solicitation Agent to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentence, or if the Company instructs the Bid Solicitation Agent to obtain bids and the Bid Solicitation Agent fails to make such determination, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, then, in either case, the Trading Price per $1,000 principal amount of Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company shall so notify in writing the Holders, the Trustee and the Conversion Agent (if other than the Trustee). If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate for such date, the Company shall so notify in writing the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee).
(i) If, prior to the close of business on the Business Day immediately preceding August 15, 2029, the Company elects to:
(A) issue to all or substantially all holders of the Common Stock any rights, options or warrants (other than in connection with a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock) entitling them, for a period of not more than 45 calendar days after the announcement date of such issuance, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance; or
(B) distribute to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase securities of the Company (other than pursuant to a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock), which distribution has a per share value, as reasonably determined by the Board of Directors, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution, then, in either case, the Company shall notify in writing all Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) at least 30 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan, no later than the Business Day after the Company becomes aware that such separation has occurred or will occur); provided, however, that if the Company elects Physical Settlement (to the extent that the Company has not elected another Settlement Method to apply, including pursuant to Section 14.02) in the applicable notice in respect of any conversions that occurs from, and including, the date the Company provides such notice to, and including, the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or issuance (or, if earlier, the date the Company announces that such issuance or distribution will not take place) (the “Distribution Trigger Irrevocable Physical Settlement Period”), the Company shall be permitted to provide no less than 10 Scheduled Trading Days’ notice prior to the Ex-Dividend Date for the applicable issuance or distribution, in which case the Company shall be required to settle all conversions of Notes with a Conversion Date occurring during the Distribution Trigger Irrevocable Physical Settlement Period by Physical Settlement, and the Company shall describe the same in such notice. Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at any time until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take place, in each case, even if the Notes are not otherwise convertible at such time. Notwithstanding the foregoing, Holders may not convert their Notes under this Section 14.01(b)(ii) if they participate (other than in the case of a share split or share combination) at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described under this Section 14.01(b)(ii)(A) or (B) without having to convert their Notes as if they held a number of shares of Common Stock equal to the then-effective Conversion Rate multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. Neither the Trustee not the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether an issuance or distribution described in this clause (ii) has occurred.
(ii) If a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section 15.02, or if the Company is a party to a Share Exchange Event (other than a Share Exchange Event that is solely for the purpose of changing the Company’s jurisdiction of organization that does not constitute a Fundamental Change or Make-Whole Fundamental Change) that occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, in each case, pursuant to which the Common Stock would be converted into cash, securities or other assets, all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the effective date of the transaction until the earlier of (x) 35 Trading Days after the effective date of such transaction or, if such transaction also constitutes a Fundamental Change, until the close of business on the Business Day immediately preceding the related Fundamental Change Repurchase Date and (y) the second Scheduled Trading Day immediately preceding the Maturity Date. The Company shall notify in writing Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the effective date of such transaction. Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether a Fundamental Change or a Make-Whole Fundamental Change has occurred.
(iii) Prior to the close of business on the Business Day immediately preceding August 15, 2029, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar quarter commencing after the calendar quarter ending on March 31, 2025 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day. The Company shall determine at the beginning of each calendar quarter commencing after March 31, 2025 whether the Notes may be surrendered for conversion in accordance with this clause (iv) and shall provide written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) if the Notes become convertible in accordance with this clause (iv). Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether the condition set forth in this clause (iv) has been met.
(iv) If the Company calls any or all of the Notes for redemption pursuant to Article 16 prior to the close of business on the Business Day immediately preceding August 15, 2029, then a Holder may surrender all or any part of such of its Notes as called for redemption for conversion at any time prior to the close of business on the second Scheduled Trading Day prior to the Redemption Date, even if the Notes are not otherwise convertible at such time. After that time, the right to convert such Notes pursuant to this Section 14.01(b)(v) shall expire, unless the Company defaults in the payment of the Redemption Price, in which case a Holder of Notes may convert its Notes until the Redemption Price has been paid or duly provided for.
Appears in 2 contracts
Sources: Indenture (New Whale Inc.), Indenture (World Wrestling Entertainmentinc)
Conversion Privilege. (a) Subject to and upon compliance with the provisions of this Article 14, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the Business Day immediately preceding August December 15, 2029 2021 under the circumstances and during the periods set forth in Section 14.01(b), and (ii) regardless of the conditions described in Section 14.01(b), on or after August December 15, 2029 2021 and prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 62.3539 15.7858 shares of Common Stock (subject to adjustment as provided in this Article 14, the “Conversion Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.02, the “Conversion Obligation”).
(ab) (i) Prior to the close of business on the Business Day immediately preceding August December 15, 20292021, a Holder may surrender all or any portion of its Notes for conversion at any time during the five Business Day period immediately after any five ten consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this subsection (b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on each such Trading Day and the Conversion Rate on each such Trading Day. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this subsection (b)(i) and the definition of Trading Price set forth in this Indenture. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for eacheach and the Company shall direct such securities dealers to work with the Bid Solicitation Agent. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes unless the Company has requested such determination, and the Company shall have no obligation to make such request determination (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes) and the Company shall have no obligation to make such request unless a Holder of at least $1,000,000 5,000,000 aggregate principal amount of Notes requests in writing that the Company make such a determination and provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the Conversion Rate on such Trading DayDay and such Holder requests that the Company request that the Bid Solicitation Agent determine or, if the Company is acting as Bid Solicitation Agent, requests that the Company determine, the Trading Price of the Notes, at which time the Company shall instruct three nationally recognized securities dealers to deliver bids and instruct the Bid Solicitation Agent (if other than the Company) to determine, or if the Company is acting as Bid Solicitation Agent, the Company shall determine, the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not instruct the Bid Solicitation Agent to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentence, or if the Company instructs the Bid Solicitation Agent to obtain bids when required and the Bid Solicitation Agent fails to make carry out such determinationinstruction, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, then, in either case, the Trading Price per $1,000 principal amount of Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company shall so notify in writing the Holders, the Trustee and the Conversion Agent (if other than the Trustee). If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate for such date, the Company shall so notify in writing the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee).
(i) If, prior to the close of business on the Business Day immediately preceding August 15, 2029, the Company elects to:
(A) issue to all or substantially all holders of the Common Stock any rights, options or warrants (other than in connection with a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock) entitling them, for a period of not more than 45 calendar days after the announcement date of such issuance, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance; or
(B) distribute to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase securities of the Company (other than pursuant to a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock), which distribution has a per share value, as reasonably determined by the Board of Directors, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution, then, in either case, the Company shall notify in writing all Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) at least 30 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan, no later than the Business Day after the Company becomes aware that such separation has occurred or will occur); provided, however, that if the Company elects Physical Settlement (to the extent that the Company has not elected another Settlement Method to apply, including pursuant to Section 14.02) in the applicable notice in respect of any conversions that occurs from, and including, the date the Company provides such notice to, and including, the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or issuance (or, if earlier, the date the Company announces that such issuance or distribution will not take place) (the “Distribution Trigger Irrevocable Physical Settlement Period”), the Company shall be permitted to provide no less than 10 Scheduled Trading Days’ notice prior to the Ex-Dividend Date for the applicable issuance or distribution, in which case the Company shall be required to settle all conversions of Notes with a Conversion Date occurring during the Distribution Trigger Irrevocable Physical Settlement Period by Physical Settlement, and the Company shall describe the same in such notice. Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at any time until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take place, in each case, even if the Notes are not otherwise convertible at such time. Notwithstanding the foregoing, Holders may not convert their Notes under this Section 14.01(b)(ii) if they participate (other than in the case of a share split or share combination) at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described under this Section 14.01(b)(ii)(A) or (B) without having to convert their Notes as if they held a number of shares of Common Stock equal to the then-effective Conversion Rate multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. Neither the Trustee not the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether an issuance or distribution described in this clause (ii) has occurred.
(ii) If a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section 15.02, or if the Company is a party to a Share Exchange Event (other than a Share Exchange Event that is solely for the purpose of changing the Company’s jurisdiction of organization that does not constitute a Fundamental Change or Make-Whole Fundamental Change) that occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, in each case, pursuant to which the Common Stock would be converted into cash, securities or other assets, all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the effective date of the transaction until the earlier of (x) 35 Trading Days after the effective date of such transaction or, if such transaction also constitutes a Fundamental Change, until the close of business on the Business Day immediately preceding the related Fundamental Change Repurchase Date and (y) the second Scheduled Trading Day immediately preceding the Maturity Date. The Company shall notify in writing Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the effective date of such transaction. Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether a Fundamental Change or a Make-Whole Fundamental Change has occurred.
(iii) Prior to the close of business on the Business Day immediately preceding August 15, 2029, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar quarter commencing after the calendar quarter ending on March 31, 2025 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day. The Company shall determine at the beginning of each calendar quarter commencing after March 31, 2025 whether the Notes may be surrendered for conversion in accordance with this clause (iv) and shall provide written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) if the Notes become convertible in accordance with this clause (iv). Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether the condition set forth in this clause (iv) has been met.
(iv) If the Company calls any or all of the Notes for redemption pursuant to Article 16 prior to the close of business on the Business Day immediately preceding August 15, 2029, then a Holder may surrender all or any part of such of its Notes as called for redemption for conversion at any time prior to the close of business on the second Scheduled Trading Day prior to the Redemption Date, even if the Notes are not otherwise convertible at such time. After that time, the right to convert such Notes pursuant to this Section 14.01(b)(v) shall expire, unless the Company defaults in the payment of the Redemption Price, in which case a Holder of Notes may convert its Notes until the Redemption Price has been paid or duly provided for.
Appears in 2 contracts
Sources: Indenture (Atlas Holdings, Inc.), Indenture (Impax Laboratories Inc)
Conversion Privilege. (a) Subject to and upon compliance with the provisions of this Article 14, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral a multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the Business Day immediately preceding August July 15, 2029 under the circumstances and during the periods set forth in Section 14.01(b), and (ii) regardless of the conditions described in Section 14.01(b), on or after August July 15, 2029 and prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 62.3539 111.1111 shares of Common Stock (subject to adjustment as provided in this Article 14, the “Conversion Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.02, the “Conversion Obligation”).
(ab) (i) Prior to the close of business on the Business Day immediately preceding August July 15, 2029, a Holder may surrender all or any portion of its Notes for conversion at any time during the five Business Day period immediately after any five ten consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a written request by a Holder of Notes in accordance with this subsection (b)(iSection 14.01(b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on each such Trading Day and the Conversion Rate on each such Trading Day. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this subsection (b)(iSection 14.01(b)(i) and the definition of Trading Price set forth in this Indenture. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes unless the Company has requested such determinationdetermination in writing, and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes) unless a Holder of at least $1,000,000 2,000,000 aggregate principal amount of Notes requests in writing that the Company make such a determination and provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the Conversion Rate on such Trading DayRate, at which time the Company shall instruct three nationally recognized securities dealers to deliver bids and instruct the Bid Solicitation Agent in writing (if other than the Company) to determine, or if the Company is acting as Bid Solicitation Agent, the Company shall determine, determine the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate. At such time as the Company directs the Bid Solicitation Agent in writing to solicit bid quotations, the Company shall provide the Bid Solicitation Agent with the names and contact details of the three independent nationally recognized securities dealers selected by the Company, and the Company shall direct those security dealers to provide bids to the Bid Solicitation Agent. Any such determination will be conclusive absent manifest error. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not not, when the Company is required to, instruct the Bid Solicitation Agent to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentenceobtain bids, or if the Company so instructs the Bid Solicitation Agent to obtain bids and the Bid Solicitation Agent fails to make such determination, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, determination. then, in either case, the Trading Price per $1,000 principal amount of Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company shall so notify in writing the Holders, the Trustee and the Conversion Agent (if other than the Trustee)) in writing. If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate for such date, the Company shall so notify in writing the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee).
(i) If, prior to the close of business on the Business Day immediately preceding August 15, 2029, the Company elects to:
(A) issue to all or substantially all holders of the Common Stock any rights, options or warrants (other than in connection with a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock) entitling them, for a period of not more than 45 calendar days after the announcement date of such issuance, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance; or
(B) distribute to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase securities of the Company (other than pursuant to a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock), which distribution has a per share value, as reasonably determined by the Board of Directors, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution, then, in either case, the Company shall notify in writing all Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) at least 30 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan, no later than the Business Day after the Company becomes aware that such separation has occurred or will occur); provided, however, that if the Company elects Physical Settlement (to the extent that the Company has not elected another Settlement Method to apply, including pursuant to Section 14.02) in the applicable notice in respect of any conversions that occurs from, and including, the date the Company provides such notice to, and including, the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or issuance (or, if earlier, the date the Company announces that such issuance or distribution will not take place) (the “Distribution Trigger Irrevocable Physical Settlement Period”), the Company shall be permitted to provide no less than 10 Scheduled Trading Days’ notice prior to the Ex-Dividend Date for the applicable issuance or distribution, in which case the Company shall be required to settle all conversions of Notes with a Conversion Date occurring during the Distribution Trigger Irrevocable Physical Settlement Period by Physical Settlement, and the Company shall describe the same in such notice. Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at any time until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take place, in each case, even if the Notes are not otherwise convertible at such time. Notwithstanding the foregoing, Holders may not convert their Notes under this Section 14.01(b)(ii) if they participate (other than in the case of a share split or share combination) at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described under this Section 14.01(b)(ii)(A) or (B) without having to convert their Notes as if they held a number of shares of Common Stock equal to the then-effective Conversion Rate multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. Neither the Trustee not the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether an issuance or distribution described in this clause (ii) has occurred.
(ii) If a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section 15.02, or if the Company is a party to a Share Exchange Event (other than a Share Exchange Event that is solely for the purpose of changing the Company’s jurisdiction of organization that does not constitute a Fundamental Change or Make-Whole Fundamental Change) that occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, in each case, pursuant to which the Common Stock would be converted into cash, securities or other assets, all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the effective date of the transaction until the earlier of (x) 35 Trading Days after the effective date of such transaction or, if such transaction also constitutes a Fundamental Change, until the close of business on the Business Day immediately preceding the related Fundamental Change Repurchase Date and (y) the second Scheduled Trading Day immediately preceding the Maturity Date. The Company shall notify in writing Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the effective date of such transaction. Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether a Fundamental Change or a Make-Whole Fundamental Change has occurred.
(iii) Prior to the close of business on the Business Day immediately preceding August 15, 2029, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar quarter commencing after the calendar quarter ending on March 31, 2025 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day. The Company shall determine at the beginning of each calendar quarter commencing after March 31, 2025 whether the Notes may be surrendered for conversion in accordance with this clause (iv) and shall provide written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing, and thereafter neither the Company nor the Bid Solicitation Agent (if other than the Company) shall be required to solicit bids (or determine the Trading Price of the Notes become convertible in accordance with this clause (iv). Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether the condition as set forth in this clause (ivIndenture) has been met.
(iv) If the Company calls any or all of the Notes for redemption pursuant to Article 16 prior to the close of business on the Business Day immediately preceding August 15, 2029, then again until a new Holder may surrender all or any part of such of its Notes as called for redemption for conversion at any time prior to the close of business on the second Scheduled Trading Day prior to the Redemption Date, even if the Notes are not otherwise convertible at such time. After that time, the right to convert such Notes request is made pursuant to this Section 14.01(b)(v) shall expire, unless the Company defaults in the payment of the Redemption Price, in which case a Holder of Notes may convert its Notes until the Redemption Price has been paid or duly provided for14.01(b)(i).
Appears in 2 contracts
Sources: Indenture (Brookdale Senior Living Inc.), Indenture (Brookdale Senior Living Inc.)
Conversion Privilege. (a) Subject to and upon compliance with the provisions of this Article 14, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the Business Day immediately preceding August 15June 1, 2029 2030 under the circumstances and during the periods set forth in Section 14.01(b), and (ii) regardless of the conditions described in Section 14.01(b), on or after August 15June 1, 2029 2030 and prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 62.3539 72.0841 shares of Common Stock (subject to adjustment as provided in this Article 14, the “Conversion Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.02, the “Conversion Obligation”).
(ab) (i) Prior to the close of business on the Business Day immediately preceding August 15June 1, 20292030, a Holder may surrender all or any portion of its Notes for conversion at any time during the five Business Day period immediately after any five consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this subsection (b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on each such Trading Day and the Conversion Rate on each such Trading Day. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this subsection (b)(i) and the definition of Trading Price set forth in this Indenture. The At such time as the Company shall provide written notice to instructs the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by in writing to obtain bids, the Company pursuant to shall provide the definition of Trading Price, along Bid Solicitation Agent with appropriate the names and contact information for eachthe securities dealers the Company has selected and the Company shall instruct such securities dealers to provide bids to the Bid Solicitation Agent. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes unless the Company has requested such determination, and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes) unless a Holder of at least $1,000,000 aggregate principal amount of Notes requests in writing that the Company make such a determination and provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the Conversion Rate on such Trading Day, at which time the Company shall instruct three nationally recognized securities dealers to deliver bids and instruct the Bid Solicitation Agent (if other than the Company) to determine, or if the Company is acting as Bid Solicitation Agent, the Company shall determine, the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not instruct the Bid Solicitation Agent to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentence, or if the Company instructs the Bid Solicitation Agent to obtain bids and the Bid Solicitation Agent fails to make such determination, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, then, in either case, the Trading Price per $1,000 principal amount of Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company shall so notify in writing the Holders, the Trustee and the Conversion Agent (if other than the Trustee). Any such determination shall be conclusive absent manifest error. If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate for such date, the Company shall so notify in writing the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) and thereafter neither the Company nor the Bid Solicitation Agent (if other than the Company) shall be required to solicit bids (or determine the Trading Price of the Notes as set forth in this Indenture) again unless a new Holder request is made as provided in this subsection (b)(i).
(i) If, prior to the close of business on the Business Day immediately preceding August 15June 1, 20292030, the Company elects to:
(A) issue to all or substantially all holders of the Common Stock any rights, options or warrants (other than in connection with a stockholder shareholder rights plan so long as such rights have not no separated from the shares of the Common Stock) entitling them, for a period of not more than 45 calendar days after the announcement date of such issuance, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance; or
(B) distribute to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase securities of the Company (other than pursuant to a stockholder shareholder rights plan so long as such rights have not separated from the shares of the Common Stock), which distribution has a per share value, as reasonably determined by the Board of DirectorsCompany in good faith, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution, then, in either case, the Company shall notify in writing all Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) at least 30 25 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder shareholder rights plan, no later than the Business Day as soon as reasonably practicable after the Company becomes aware that such separation or triggering event has occurred or will occur); provided, however, that if the Company elects Physical Settlement (to the extent that the Company has not elected another Settlement Method to apply, including pursuant to Section 14.02) in the applicable notice in respect of any conversions that occurs from, and including, the date the Company provides such notice to, and including, the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or issuance (or, if earlier, the date the Company announces that such issuance or distribution will not take place) (the “Distribution Trigger Irrevocable Physical Settlement Period”), the Company shall be permitted to provide no less than 10 Scheduled Trading Days’ notice prior to the Ex-Dividend Date for the applicable issuance or distribution, in which case the Company shall be required to settle all conversions of Notes with a Conversion Date occurring during the Distribution Trigger Irrevocable Physical Settlement Period by Physical Settlement, and the Company shall describe the same in such notice. Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at any time until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take place, in each case, even if the Notes are not otherwise convertible at such time. Notwithstanding the foregoing, Holders may not convert their Notes under this Section 14.01(b)(ii) if they participate (other than in the case of a share split or share combination) at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described under this Section 14.01(b)(ii)(A) or (B) without having to convert their Notes as if they held a number of shares of Common Stock equal to the then-effective Conversion Rate multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. Neither the Trustee not the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether an issuance or distribution described in this clause (ii) has occurred.
(ii) If a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close of business on the Business Day immediately preceding August 15June 1, 20292030, regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section 15.02, or if the Company is a party to a Share Exchange Event (other than a Share Exchange Event that is solely for the purpose of changing the Company’s jurisdiction of organization that (x) does not constitute a Fundamental Change or Make-Whole Fundamental Change) and (y) results in a reclassification, conversion or exchange of outstanding shares of Common Stock solely into shares of common stock of the surviving entity and such common stock becomes Reference Property for the Notes) that occurs prior to the close of business on the Business Day immediately preceding August 15June 1, 20292030, in (each casesuch Fundamental Change, pursuant to which the Common Stock would be converted into cashMake-Whole Fundamental Change or Share Exchange Event, securities or other assets, a “Corporate Event”) all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the effective date of the transaction such Corporate Event until the earlier of (x) 35 Trading Days after the effective date of such transaction Corporate Event (or, if the Company gives notice after the effective date of such Corporate Event, until 35 Trading Days after the date the Company gives notice of such Corporate Event) or, if such transaction Corporate Event also constitutes a Fundamental Change (other than an Exempted Fundamental Change), until the close of business on the Business Day immediately preceding the related Fundamental Change Repurchase Date and (y) the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date. The Company shall notify in writing Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than in writing as promptly as practicable following the effective date of such transaction. Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether a Fundamental Change or a Make-Whole Fundamental Change has occurredCorporate Event.
(iii) Prior to the close of business on the Business Day immediately preceding August 15June 1, 20292030, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar quarter commencing after the calendar quarter ending on March December 31, 2025 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day. The Company shall determine at the beginning of each calendar quarter commencing after March December 31, 2025 whether the Notes may be surrendered for conversion in accordance with this clause (iv) and shall provide written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) if the Notes become convertible during such calendar quarter in accordance with this clause (iv). Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether the condition set forth in this clause (iv) has been met.
(iv) If the Company calls any or all of the Notes for redemption pursuant to Article 16 prior to the close of business on the Business Day immediately preceding August 15June 1, 20292030, then a Holder may surrender all or any part of such of its Notes as called for redemption for conversion at any time prior to the close of business on the second Scheduled Trading Day prior to the Redemption Date, even if the Notes are not otherwise convertible at such time. After that time, the right to convert such Notes pursuant to this Section 14.01(b)(v) shall expire, unless the Company defaults in the payment of the Redemption Price, in which case a Holder of Notes may convert its Notes until the close of business on the Scheduled Trading Day immediately preceding the date on which the Redemption Price has been paid or duly provided for. If the Company elects to redeem fewer than all of the outstanding Notes for Optional Redemption pursuant to Article 16, and the Holder of any Note (or any owner of a beneficial interest in any Global Note) is reasonably not able to determine, prior to the close of business on the 24th Scheduled Trading Day immediately before the relevant Redemption Date (or if, as permitted by Section 16.02(a), the Company delivers a Redemption Notice electing Physical Settlement not less than 10 nor more than 45 Scheduled Trading Days prior to the related Redemption Date, then prior to close of business on the 9th Scheduled Trading Day immediately before the relevant Redemption Date), whether such Note or beneficial interest, as applicable, is to be redeemed pursuant to such Optional Redemption (and, as a result thereof, convertible on account of the related Redemption Notice in accordance with the provisions of this Indenture), then such Holder or owner, as applicable, will be entitled to convert such Note or beneficial interest, as applicable, at any time before the close of business on the Scheduled Trading Day prior to such Redemption Date, unless the Company defaults in the payment of the Redemption Price, in which case such Holder or owner, as applicable, will be entitled to convert such Note or beneficial interest, as applicable, until the close of business on the Scheduled Trading Day immediately preceding the date on which the Redemption Price has been paid or duly provided for, and each such conversion will be deemed to be of a Note called for Optional Redemption, and such Note or beneficial interest will be deemed called for Optional Redemption solely for the purposes of such conversion (“Deemed Redemption”). If a Holder elects to convert Called Notes pursuant to this Section 14.01(b)(v) during the related Redemption Period, the Company will, under certain circumstances, increase the Conversion Rate for such Called Notes pursuant to Section 14.03. Accordingly, if the Company elects to redeem fewer than all of the outstanding Notes pursuant to Article 16, Holders of the Notes that are not Called Notes will not be entitled to convert such Notes pursuant to this Section 14.01(b)(v) and will not be entitled to an increase in the Conversion Rate on account of the Redemption Notice for conversions of such Notes during the related Redemption Period, even if such Notes are otherwise convertible pursuant to any other provision of this Section 14.01(b) and are converted during the related Redemption Period.
Appears in 2 contracts
Sources: Indenture (Twenty One Capital, Inc.), Indenture (Twenty One Capital, Inc.)
Conversion Privilege. (a) Subject to and upon compliance with the provisions of this Article 14, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is a minimum of $1,000 principal amount or an integral multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the Business Day immediately preceding August 15October 1, 2029 2028 under the circumstances and during the periods set forth in Section 14.01(b), and (ii) regardless of the conditions described in Section 14.01(b), on or after August 15October 1, 2029 2028 and prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, in each case, at based on an initial conversion rate of 62.3539 10.6256 shares of Common Stock (subject to adjustment as provided in this Article 14, the “Conversion Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.02, the “Conversion Obligation”).
(ab) (i) Prior to the close of business on the Business Day immediately preceding August 15October 1, 20292028, a Holder may surrender all or any portion of its Notes for conversion at any time during the five Business Day period immediately after any five ten consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this subsection (b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on each such Trading Day and the Conversion Rate on each such Trading Day. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this subsection (b)(i) and the definition of Trading Price set forth in this IndentureSection 1.01. The At such time as the Company directs the Bid Solicitation Agent (if other than the Company) in writing to solicit bid quotations, the Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each, and the Company shall direct those securities dealers to provide bids to the Bid Solicitation Agent in accordance with the definition of Trading Price. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes unless the Company has requested such determinationdetermination in writing, and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes) unless a Holder or Holders of at least $1,000,000 2.0 million in aggregate principal amount of the Notes requests in writing that the Company make such a determination and provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the Conversion Rate on such Trading Day, at which time the Company shall instruct three nationally recognized securities dealers to deliver bids and instruct the Bid Solicitation Agent (if other than the Company) to determine, or if the Company is acting as Bid Solicitation Agent, the Company shall determine, the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not instruct the Bid Solicitation Agent in writing to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentence, or if the Company instructs the Bid Solicitation Agent in writing to obtain bids and the Bid Solicitation Agent fails to make such determination, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, then, in either case, the Trading Price per $1,000 principal amount of Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company shall so notify in writing the Holders, the Trustee and the Conversion Agent (if other than the Trustee)) in writing. If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate for such date, the Company shall so notify in writing the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee).
(i) If, prior to the close of business on the Business Day immediately preceding August 15, 2029, the Company elects to:
(A) issue to all or substantially all holders of the Common Stock any rights, options or warrants (other than in connection with a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock) entitling them, for a period of not more than 45 calendar days after the announcement date of such issuance, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance; or
(B) distribute to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase securities of the Company (other than pursuant to a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock), which distribution has a per share value, as reasonably determined by the Board of Directors, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution, then, in either case, the Company shall notify in writing all Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) at least 30 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan, no later than the Business Day after the Company becomes aware that such separation has occurred or will occur); provided, however, that if the Company elects Physical Settlement (to the extent that the Company has not elected another Settlement Method to apply, including pursuant to Section 14.02) in the applicable notice in respect of any conversions that occurs from, and including, the date the Company provides such notice to, and including, the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or issuance (or, if earlier, the date the Company announces that such issuance or distribution will not take place) (the “Distribution Trigger Irrevocable Physical Settlement Period”), the Company shall be permitted to provide no less than 10 Scheduled Trading Days’ notice prior to the Ex-Dividend Date for the applicable issuance or distribution, in which case the Company shall be required to settle all conversions of Notes with a Conversion Date occurring during the Distribution Trigger Irrevocable Physical Settlement Period by Physical Settlement, and the Company shall describe the same in such notice. Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at any time until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take place, in each case, even if the Notes are not otherwise convertible at such time. Notwithstanding the foregoing, Holders may not convert their Notes under this Section 14.01(b)(ii) if they participate (other than in the case of a share split or share combination) at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described under this Section 14.01(b)(ii)(A) or (B) without having to convert their Notes as if they held a number of shares of Common Stock equal to the then-effective Conversion Rate multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. Neither the Trustee not the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether an issuance or distribution described in this clause (ii) has occurredwriting.
(ii) If a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section 15.02, or if the Company is a party to a Share Exchange Event (other than a Share Exchange Event that is solely for the purpose of changing the Company’s jurisdiction of organization that does not constitute a Fundamental Change or Make-Whole Fundamental Change) that occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, in each case, pursuant to which the Common Stock would be converted into cash, securities or other assets, all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the effective date of the transaction until the earlier of (x) 35 Trading Days after the effective date of such transaction or, if such transaction also constitutes a Fundamental Change, until the close of business on the Business Day immediately preceding the related Fundamental Change Repurchase Date and (y) the second Scheduled Trading Day immediately preceding the Maturity Date. The Company shall notify in writing Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the effective date of such transaction. Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether a Fundamental Change or a Make-Whole Fundamental Change has occurred.
(iii) Prior to the close of business on the Business Day immediately preceding August 15, 2029, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar quarter commencing after the calendar quarter ending on March 31, 2025 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day. The Company shall determine at the beginning of each calendar quarter commencing after March 31, 2025 whether the Notes may be surrendered for conversion in accordance with this clause (iv) and shall provide written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) if the Notes become convertible in accordance with this clause (iv). Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether the condition set forth in this clause (iv) has been met.
(iv) If the Company calls any or all of the Notes for redemption pursuant to Article 16 prior to the close of business on the Business Day immediately preceding August 15, 2029, then a Holder may surrender all or any part of such of its Notes as called for redemption for conversion at any time prior to the close of business on the second Scheduled Trading Day prior to the Redemption Date, even if the Notes are not otherwise convertible at such time. After that time, the right to convert such Notes pursuant to this Section 14.01(b)(v) shall expire, unless the Company defaults in the payment of the Redemption Price, in which case a Holder of Notes may convert its Notes until the Redemption Price has been paid or duly provided for.
Appears in 2 contracts
Conversion Privilege. (a) Subject to and upon compliance with the provisions of this Article Article 14, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is a minimum of $1,000 principal amount or an integral multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section Section 14.01(b), at any time prior to the close of business on the Business Day immediately preceding August 151, 2029 2028 under the circumstances and during the periods set forth in Section Section 14.01(b), and (ii) regardless of the conditions described in Section Section 14.01(b), on or after August 151, 2029 2028 and prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 62.3539 49.0810 shares of Common Stock (subject to adjustment as provided in this Article Article 14, the “Conversion Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section Section 14.02, the “Conversion Obligation”).
(a) (i) Prior to the close of business on the Business Day immediately preceding August 151, 20292028, a Holder may surrender all or any portion of its Notes for conversion at any time during the five Business Day period immediately after any five ten consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this subsection (b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on each such Trading Day and the Conversion Rate on each such Trading Day. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this subsection (b)(i) and the definition of Trading Price set forth in this Indenture. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes unless the Company has requested such determination, and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes) unless a Holder of at least $1,000,000 2,000,000 aggregate principal amount of Notes requests in writing that the Company make such a determination and provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the Conversion Rate on such Trading Day, at which time the Company shall instruct three nationally recognized securities dealers to deliver bids and instruct the Bid Solicitation Agent (if other than the Company) to determine, or if the Company is acting as Bid Solicitation Agent, the Company shall determine, the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate. At such time as the Company instructs the Bid Solicitation Agent (if other than the Company) to obtain bids, the Company shall provide the Bid Solicitation Agent with the names and contact information for the securities dealers it selected and the Company shall instruct such securities dealers to provide bids to the Bid Solicitation Agent. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not not, when the Company is required to, instruct the Bid Solicitation Agent to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentence, or if the Company instructs gives such instruction to the Bid Solicitation Agent to obtain bids and the Bid Solicitation Agent fails to make such determination, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, then, in either case, the Trading Price per $1,000 principal amount of Notes on any date shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company shall so notify in writing the Holders, the Trustee and the Conversion Agent (if other than the Trustee)) in writing. Any such determination shall be conclusive absent manifest error. If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate for such date, the Company shall so notify in writing the Holders of the NotesHolders, the Trustee and the Conversion Agent (if other than the Trustee) in writing and thereafter neither the Company nor the Bid Solicitation Agent (if other than the Company) shall be required to solicit bids (or determine the Trading Price of the Notes as set forth in this Indenture) again unless a new Holder request is made as provided in this subsection (b)(i).
(iii) If, prior to the close of business on the Business Day immediately preceding August 151, 20292028, the Company elects to:
(A) issue distribute to all or substantially all holders of the Common Stock any rights, options or warrants (other than in connection with a stockholder rights plan so long as prior to the separation of such rights have not separated from the shares of the Common Stock) entitling them, for a period of not more than 45 60 calendar days after the announcement date of such issuancedistribution, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuancedistribution; or
(B) distribute to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase securities of the Company (other than pursuant to in connection with a stockholder rights plan so long as prior to separation of such rights have not separated from the shares of the Common Stock), which distribution has a per share value, as reasonably determined by the Board of DirectorsCompany in good faith, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution, then, in either case, the Company shall notify in writing all Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) in writing at least 30 48 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan, no later than the Business Day as soon as reasonably practicable after the Company becomes aware that such separation or triggering event has occurred or will occur); provided, however, that if the Company elects Physical Settlement (to the extent that the Company has not elected another Settlement Method to apply, including pursuant to Section 14.02) in the applicable notice in respect of any conversions that occurs from, and including, the date the Company provides such notice to, and including, the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or issuance (or, if earlier, the date the Company announces that such issuance or distribution will not take place) (the “Distribution Trigger Irrevocable Physical Settlement Period”), the Company shall be permitted to provide no less than 10 Scheduled Trading Days’ notice prior to the Ex-Dividend Date for the applicable issuance or distribution, in which case the Company shall be required to settle all conversions of Notes with a Conversion Date occurring during the Distribution Trigger Irrevocable Physical Settlement Period by Physical Settlement, and the Company shall describe the same in such notice. Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at any time until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take place, in each case, even if the Notes are not otherwise convertible at such time. Notwithstanding the foregoing, ; provided that Holders may not convert their Notes under pursuant to this Section 14.01(b)(iisubsection (b)(ii) if they participate (other than in the case of a share split or share combination) participate, at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described under this Section 14.01(b)(ii)(Ain clause (A) or (B) of this subsection (b)(ii) without having to convert their Notes as if they held a number of shares of Common Stock equal to the then-effective Conversion Rate as of the Record Date for such distribution, multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. Neither the Trustee not the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether an issuance or distribution described in this clause (ii) has occurredHold▇▇.
(iiiii) If (A) a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close of business on the Business Day immediately preceding August 151, 20292028, regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section Section 15.02, or (B) if the Company is a party to a Share Exchange Event (other than a Share Exchange Event that is solely for the purpose of changing the Company’s jurisdiction of organization that (x) does not constitute a Fundamental Change or a Make-Whole Fundamental ChangeChange and (y) results in a reclassification, conversion or exchange of outstanding shares of Common Stock solely into shares of common stock of the surviving entity and such common stock becomes Reference Property for the Notes) that occurs prior to the close of business on the Business Day immediately preceding August 151, 20292028 (each such Fundamental Change, in each caseMake-Whole Fundamental Change or Share Exchange Event, pursuant to which the Common Stock would be converted into cash, securities or other assetsa “Corporate Event”), all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the effective date of the transaction such Corporate Event until the earlier of (x) 35 Trading Days after the effective date of the Corporate Event (or, if the Company gives notice after the effective date of such transaction Corporate Event, until 35 Trading Days after the date the Company gives notice of such Corporate Event) or, if such transaction Corporate Event also constitutes a Fundamental Change (other than an Exempted Fundamental Change), until the close of business on the Business Day immediately preceding the related Fundamental Change Repurchase Date and (y) the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date. The Company shall notify in writing Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than in writing as promptly as practicable following the effective date of such transactionCorporate Event. Neither If the Trustee nor Company does not provide such notice by the Conversion Agent shall have any duty to determine or verify second Business Day after such effective date, then the Company’s determination last day on which the Notes are convertible will be extended by the number of whether a Fundamental Change or a Make-Whole Fundamental Change has occurredBusiness Days from, and including, the second Business Day after such effective date to, but excluding, the date the Company provides such notice.
(iiiiv) Prior to the close of business on the Business Day immediately preceding August 151, 20292028, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar fiscal quarter commencing after the calendar fiscal quarter ending on March 31January 28, 2025 2024 (and only during such calendar fiscal quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar fiscal quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day. The Company shall determine at the beginning of each calendar quarter commencing after March 31, 2025 whether the Notes may be surrendered for conversion in accordance with this clause (iv) and shall provide written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) if the Notes become convertible in accordance with this clause (iv). Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify as determined by the Company’s determination of whether the condition set forth in this clause (iv) has been met.
(ivv) If the Company calls any or all of the Notes for redemption pursuant to Article 16 prior to the close of business on the Business Day immediately preceding August 15, 2029Article 16, then a Holder may surrender all or any part of such portion of its Called Notes as called for redemption for conversion at any time prior to the close of business on the second Scheduled Trading Day prior to immediately preceding the Redemption Date, even if the Called Notes are not otherwise convertible at such time. After that time, the right to convert such Called Notes pursuant to this Section 14.01(b)(v) on account of the Company’s delivery of a Notice of Redemption shall expire, unless the Company defaults in the payment of the Redemption Price, in which case a Holder of Called Notes may convert all or a portion of its Called Notes until the close of business on the Scheduled Trading Day immediately preceding the date on which the Redemption Price has been paid or duly provided for. If the Company elects to redeem fewer than all of the outstanding Notes pursuant to Section 16.02, and the Holder of any Note (or any owner of a beneficial interest in any Global Note) is reasonably not able to determine, prior to the close of business on the 44th Scheduled Trading Day immediately preceding the relevant Redemption Date, whether such Note or beneficial interest, as applicable, is to be redeemed pursuant to such Optional Redemption, then such Holder or owner, as applicable, will be entitled to convert such Note or beneficial interest, as applicable, at any time before the close of business on the second Scheduled Trading Day immediately preceding such Redemption Date, unless the Company defaults in the payment of the Redemption Price, in which case such Holder or owner, as applicable, will be entitled to convert such Note or beneficial interest, as applicable, until the close of business on the Scheduled Trading Day immediately preceding the date on which the Redemption Price has been paid or duly provided for, and each such conversion will be deemed to be of a Note called for Optional Redemption, and such Note or beneficial interest will be deemed to be called for Optional Redemption solely for the purposes of such conversion (“Deemed Redemption”). In connection with an Optional Redemption pursuant to Section 16.02, if a Holder elects to convert Called Notes during the related Redemption Period, the Company will, under certain circumstances, increase the Conversion Rate for such Called Notes pursuant to Section 14.03. Accordingly, if the Company elects to redeem fewer than all of the outstanding Notes pursuant to Section 16.02, Holders of the Notes that are not Called Notes will not be entitled to convert such Notes pursuant to this Section 14.01(b)(v) and will not be entitled to an increase in the Conversion Rate on account of the Notice of Redemption for conversions of such Notes during the related Redemption Period, even if such Notes are otherwise convertible pursuant to any other provision of this Section 14.01(b).
Appears in 1 contract
Sources: Indenture (Semtech Corp)
Conversion Privilege. (a) Subject to and upon compliance with the provisions of this Article 14, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the Business Day immediately preceding August 15March 1, 2029 2023 under the circumstances and during the periods set forth in Section 14.01(b), and (ii) regardless of the conditions described in Section 14.01(b), on or after August 15March 1, 2029 2023 and prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 62.3539 22.5572 shares of Class A Common Stock (subject to adjustment as provided in this Article 14, the “Conversion Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.02, the “Conversion Obligation”).
(ab) (i) Prior to the close of business on the Business Day immediately preceding August 15March 1, 20292023, a Holder may surrender all or any portion of its Notes for conversion at any time during the five Business Day period immediately after any five consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this subsection (b)(iSection 14.01(b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Class A Common Stock on each such Trading Day and the Conversion Rate on each such Trading Day. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this subsection (b)(iSection 14.01(b)(i) and the definition of Trading Price set forth in this Indenture. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes unless the Company has requested such determinationdetermination in writing and has provided the Bid Solicitation Agent with the names and contact information of the securities dealers the Company has selected for such purpose, and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes) unless a Holder of at least $1,000,000 aggregate principal amount of Notes requests in writing that the Company make such a determination and provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Class A Common Stock on such Trading Day and the Conversion Rate on such Trading DayRate, at which time the Company shall instruct three nationally recognized securities dealers to deliver bids and instruct the Bid Solicitation Agent in writing (if other than the Company) to determine, or if the Company is acting as Bid Solicitation Agent, the Company shall determine, determine the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Bid Solicitation Agent, or if the Company is acting as Bid Solicitation Agent, the Company, determines that the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Class A Common Stock and the Conversion RateRate and the Company shall instruct the securities dealers that it has selected to provide bids to the Bid Solicitation Agent. At such time as the Company directs the Bid Solicitation Agent in writing to solicit bid quotations, the Company shall provide the Bid Solicitation Agent with the names and contact details of the three independent nationally recognized securities dealers selected by the Company, and the Company shall direct those security dealers to provide bids to the Bid Solicitation Agent. Any such determination will be conclusive absent manifest error. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not not, when the Company is required to, instruct the Bid Solicitation Agent to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentenceobtain bids, or if the Company so instructs the Bid Solicitation Agent to obtain bids and the Bid Solicitation Agent fails to make such determination, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, determination. then, in either case, the Trading Price per $1,000 principal amount of Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Class A Common Stock and the Conversion Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company shall so notify in writing the Holders, the Trustee and the Conversion Agent (if other than the Trustee)) in writing. If, at any time after the Trading Price condition set forth above has been met, the Bid Solicitation Agent, or if the Company is acting as Bid Solicitation Agent, the Company, determines that the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Class A Common Stock and the Conversion Rate for such date, the Company shall so notify in writing the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee).
(i) If, prior to the close of business on the Business Day immediately preceding August 15, 2029, the Company elects to:
(A) issue to all or substantially all holders of the Common Stock any rights, options or warrants (other than in connection with a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock) entitling them, for a period of not more than 45 calendar days after the announcement date of such issuance, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance; or
(B) distribute to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase securities of the Company (other than pursuant to a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock), which distribution has a per share value, as reasonably determined by the Board of Directors, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution, then, in either case, the Company shall notify in writing all Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) at least 30 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan, no later than the Business Day after the Company becomes aware that such separation has occurred or will occur); provided, however, that if the Company elects Physical Settlement (to the extent that the Company has not elected another Settlement Method to apply, including pursuant to Section 14.02) in the applicable notice in respect of any conversions that occurs from, and including, the date the Company provides such notice to, and including, the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or issuance (or, if earlier, the date the Company announces that such issuance or distribution will not take place) (the “Distribution Trigger Irrevocable Physical Settlement Period”), the Company shall be permitted to provide no less than 10 Scheduled Trading Days’ notice prior to the Ex-Dividend Date for the applicable issuance or distribution, in which case the Company shall be required to settle all conversions of Notes with a Conversion Date occurring during the Distribution Trigger Irrevocable Physical Settlement Period by Physical Settlement, and the Company shall describe the same in such notice. Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at any time until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take place, in each case, even if the Notes are not otherwise convertible at such time. Notwithstanding the foregoing, Holders may not convert their Notes under this Section 14.01(b)(ii) if they participate (other than in the case of a share split or share combination) at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described under this Section 14.01(b)(ii)(A) or (B) without having to convert their Notes as if they held a number of shares of Common Stock equal to the then-effective Conversion Rate multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. Neither the Trustee not the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether an issuance or distribution described in this clause (ii) has occurred.
(ii) If a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section 15.02, or if the Company is a party to a Share Exchange Event (other than a Share Exchange Event that is solely for the purpose of changing the Company’s jurisdiction of organization that does not constitute a Fundamental Change or Make-Whole Fundamental Change) that occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, in each case, pursuant to which the Common Stock would be converted into cash, securities or other assets, all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the effective date of the transaction until the earlier of (x) 35 Trading Days after the effective date of such transaction or, if such transaction also constitutes a Fundamental Change, until the close of business on the Business Day immediately preceding the related Fundamental Change Repurchase Date and (y) the second Scheduled Trading Day immediately preceding the Maturity Date. The Company shall notify in writing Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the effective date of such transaction. Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether a Fundamental Change or a Make-Whole Fundamental Change has occurred.
(iii) Prior to the close of business on the Business Day immediately preceding August 15, 2029, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar quarter commencing after the calendar quarter ending on March 31, 2025 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day. The Company shall determine at the beginning of each calendar quarter commencing after March 31, 2025 whether the Notes may be surrendered for conversion in accordance with this clause (iv) and shall provide written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) if in writing and thereafter neither the Notes become convertible in accordance with this clause (iv). Neither the Trustee Company nor the Conversion Bid Solicitation Agent shall have any duty to determine or verify (if other than the Company’s determination of whether the condition set forth in this clause (iv) has been met.
(iv) If the Company calls any or all of the Notes for redemption pursuant to Article 16 prior to the close of business on the Business Day immediately preceding August 15, 2029, then a Holder may surrender all or any part of such of its Notes as called for redemption for conversion at any time prior to the close of business on the second Scheduled Trading Day prior to the Redemption Date, even if the Notes are not otherwise convertible at such time. After that time, the right to convert such Notes pursuant to this Section 14.01(b)(v) shall expire, unless the Company defaults in the payment of the Redemption Price, in which case be required to solicit bids again until a Holder of Notes may convert its Notes until the Redemption Price has been paid or duly new holder request is made as provided forabove.
Appears in 1 contract
Sources: Indenture (Alteryx, Inc.)
Conversion Privilege. (a) Subject to and upon compliance with the provisions of this Article 14, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any a portion (if the portion to be converted is $1,000 principal amount or an integral multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the Business Day immediately preceding August January 15, 2029 2020 under the circumstances and during the periods set forth in Section 14.01(b), and (ii) regardless of the conditions described in Section 14.01(b), on or after August January 15, 2029 2020 and prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 62.3539 35.4925 shares of Common Stock (subject to adjustment as provided in this Article 14, the “Conversion Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.02, the “Conversion Obligation”).
(ab) (i) Prior to the close of business on the Business Day immediately preceding August January 15, 20292020, a Holder may surrender all or any a portion of its Notes for conversion at any time during the five Business Day period immediately after any five 10 consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this subsection (b)(iSection 14.01(b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on each such Trading Day and the Conversion Rate on each such Trading Day. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this subsection (b)(iSection 14.01(b)(i) and the definition of Trading Price set forth in this Indenture. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each, and the Company shall further direct each such securities dealer to provide bids to the Bid Solicitation Agent (if other than the Company). The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes unless the Company has requested such determinationit to do so in writing, and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes) unless a Holder of at least $1,000,000 5,000,000 aggregate principal amount of Notes requests in writing that the Company make such a determination and provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the Conversion Rate on such Trading DayRate, at which time the Company shall instruct three nationally recognized securities dealers to deliver bids and instruct the Bid Solicitation Agent (if other than the Company) to determine, or if the Company is acting as Bid Solicitation Agent, the Company shall determine, the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not instruct the Bid Solicitation Agent to determine the Trading Price per $1,000 principal amount of Notes in writing when obligated as provided in the preceding sentencesentence to obtain bids, or if the Company instructs the Bid Solicitation Agent in writing to obtain bids and the Bid Solicitation Agent fails to make obtain such determinationbids, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make obtain such determination when obligated as provided in the preceding sentencebids, then, in either case, the Trading Price per $1,000 principal amount of Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company shall so notify in writing the Holders, the Trustee and the Conversion Agent (if other than the Trustee)) in writing. If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate for such date, the Company shall so notify in writing the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee).
(i) If, prior to the close of business on the Business Day immediately preceding August 15, 2029, the Company elects to:
(A) issue to all or substantially all holders of the Common Stock any rights, options or warrants (other than in connection with a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock) entitling them, for a period of not more than 45 calendar days after the announcement date of such issuance, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance; or
(B) distribute to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase securities of the Company (other than pursuant to a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock), which distribution has a per share value, as reasonably determined by the Board of Directors, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution, then, in either case, the Company shall notify in writing all Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) at least 30 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan, no later than the Business Day after the Company becomes aware that such separation has occurred or will occur); provided, however, that if the Company elects Physical Settlement (to the extent that the Company has not elected another Settlement Method to apply, including pursuant to Section 14.02) in the applicable notice in respect of any conversions that occurs from, and including, the date the Company provides such notice to, and including, the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or issuance (or, if earlier, the date the Company announces that such issuance or distribution will not take place) (the “Distribution Trigger Irrevocable Physical Settlement Period”), the Company shall be permitted to provide no less than 10 Scheduled Trading Days’ notice prior to the Ex-Dividend Date for the applicable issuance or distribution, in which case the Company shall be required to settle all conversions of Notes with a Conversion Date occurring during the Distribution Trigger Irrevocable Physical Settlement Period by Physical Settlement, and the Company shall describe the same in such notice. Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at any time until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take place, in each case, even if the Notes are not otherwise convertible at such time. Notwithstanding the foregoing, Holders may not convert their Notes under this Section 14.01(b)(ii) if they participate (other than in the case of a share split or share combination) at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described under this Section 14.01(b)(ii)(A) or (B) without having to convert their Notes as if they held a number of shares of Common Stock equal to the then-effective Conversion Rate multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. Neither the Trustee not the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether an issuance or distribution described in this clause (ii) has occurredwriting.
(ii) If a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section 15.02, or if the Company is a party to a Share Exchange Event (other than a Share Exchange Event that is solely for the purpose of changing the Company’s jurisdiction of organization that does not constitute a Fundamental Change or Make-Whole Fundamental Change) that occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, in each case, pursuant to which the Common Stock would be converted into cash, securities or other assets, all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the effective date of the transaction until the earlier of (x) 35 Trading Days after the effective date of such transaction or, if such transaction also constitutes a Fundamental Change, until the close of business on the Business Day immediately preceding the related Fundamental Change Repurchase Date and (y) the second Scheduled Trading Day immediately preceding the Maturity Date. The Company shall notify in writing Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the effective date of such transaction. Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether a Fundamental Change or a Make-Whole Fundamental Change has occurred.
(iii) Prior to the close of business on the Business Day immediately preceding August 15, 2029, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar quarter commencing after the calendar quarter ending on March 31, 2025 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day. The Company shall determine at the beginning of each calendar quarter commencing after March 31, 2025 whether the Notes may be surrendered for conversion in accordance with this clause (iv) and shall provide written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) if the Notes become convertible in accordance with this clause (iv). Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether the condition set forth in this clause (iv) has been met.
(iv) If the Company calls any or all of the Notes for redemption pursuant to Article 16 prior to the close of business on the Business Day immediately preceding August 15, 2029, then a Holder may surrender all or any part of such of its Notes as called for redemption for conversion at any time prior to the close of business on the second Scheduled Trading Day prior to the Redemption Date, even if the Notes are not otherwise convertible at such time. After that time, the right to convert such Notes pursuant to this Section 14.01(b)(v) shall expire, unless the Company defaults in the payment of the Redemption Price, in which case a Holder of Notes may convert its Notes until the Redemption Price has been paid or duly provided for.
Appears in 1 contract
Conversion Privilege. (a) Subject to and upon compliance with the provisions of this Article 14, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the Business Day immediately preceding August September 15, 2029 2030 under the circumstances and during the periods set forth in Section 14.01(b), and (ii) regardless of the conditions described in Section 14.01(b), on or after August September 15, 2029 2030 and prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 62.3539 0.4297 shares of Common Stock (subject to adjustment as provided in this Article 14, the “Conversion Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.02, the “Conversion Obligation”).
(ab) (i) Prior to the close of business on the Business Day immediately preceding August September 15, 20292030, a Holder may surrender all or any portion of its Notes for conversion at any time during the five Business Day period immediately after any five consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this subsection (b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on each such Trading Day and the Conversion Rate on each such Trading Day. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this subsection (b)(i) and the definition of Trading Price set forth in this Indenture. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes unless the Company has requested such determination, and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes) unless a Holder of at least $1,000,000 aggregate principal amount of Notes requests in writing that the Company make such a determination and provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the Conversion Rate on such Trading Day, at which time the Company shall instruct three nationally recognized securities dealers to deliver bids and instruct the Bid Solicitation Agent (if other than the Company) to determine, or if the Company is acting as Bid Solicitation Agent, the Company shall determine, the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not instruct the Bid Solicitation Agent to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentence, or if the Company instructs the Bid Solicitation Agent to obtain bids and the Bid Solicitation Agent fails to make such determination, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, then, in either case, the Trading Price per $1,000 principal amount of Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company shall so notify in writing the Holders, the Trustee and the Conversion Agent (if other than the Trustee). If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate for such date, the Company shall so notify in writing the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee).
(i) If, prior to the close of business on the Business Day immediately preceding August 15, 2029, the Company elects to:
(A) issue to all or substantially all holders of the Common Stock any rights, options or warrants (other than in connection with a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock) entitling them, for a period of not more than 45 calendar days after the announcement date of such issuance, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance; or
(B) distribute to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase securities of the Company (other than pursuant to a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock), which distribution has a per share value, as reasonably determined by the Board of Directors, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution, then, in either case, the Company shall notify in writing all Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) at least 30 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan, no later than the Business Day after the Company becomes aware that such separation has occurred or will occur); provided, however, that if the Company elects Physical Settlement (to the extent that the Company has not elected another Settlement Method to apply, including pursuant to Section 14.02) in the applicable notice in respect of any conversions that occurs from, and including, the date the Company provides such notice to, and including, the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or issuance (or, if earlier, the date the Company announces that such issuance or distribution will not take place) (the “Distribution Trigger Irrevocable Physical Settlement Period”), the Company shall be permitted to provide no less than 10 Scheduled Trading Days’ notice prior to the Ex-Dividend Date for the applicable issuance or distribution, in which case the Company shall be required to settle all conversions of Notes with a Conversion Date occurring during the Distribution Trigger Irrevocable Physical Settlement Period by Physical Settlement, and the Company shall describe the same in such notice. Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at any time until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take place, in each case, even if the Notes are not otherwise convertible at such time. Notwithstanding the foregoing, Holders may not convert their Notes under this Section 14.01(b)(ii) if they participate (other than in the case of a share split or share combination) at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described under this Section 14.01(b)(ii)(A) or (B) without having to convert their Notes as if they held a number of shares of Common Stock equal to the then-effective Conversion Rate multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. Neither the Trustee not the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether an issuance or distribution described in this clause (ii) has occurred.
(ii) If a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section 15.02, or if the Company is a party to a Share Exchange Event (other than a Share Exchange Event that is solely for the purpose of changing the Company’s jurisdiction of organization that does not constitute a Fundamental Change or Make-Whole Fundamental Change) that occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, in each case, pursuant to which the Common Stock would be converted into cash, securities or other assets, all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the effective date of the transaction until the earlier of (x) 35 Trading Days after the effective date of such transaction or, if such transaction also constitutes a Fundamental Change, until the close of business on the Business Day immediately preceding the related Fundamental Change Repurchase Date and (y) the second Scheduled Trading Day immediately preceding the Maturity Date. The Company shall notify in writing Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the effective date of such transaction. Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether a Fundamental Change or a Make-Whole Fundamental Change has occurred.
(iii) Prior to the close of business on the Business Day immediately preceding August 15, 2029, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar quarter commencing after the calendar quarter ending on March 31, 2025 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day. The Company shall determine at the beginning of each calendar quarter commencing after March 31, 2025 whether the Notes may be surrendered for conversion in accordance with this clause (iv) and shall provide written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) if the Notes become convertible in accordance with this clause (iv). Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether the condition set forth in this clause (iv) has been met.
(iv) If the Company calls any or all of the Notes for redemption pursuant to Article 16 prior to the close of business on the Business Day immediately preceding August 15, 2029, then a Holder may surrender all or any part of such of its Notes as called for redemption for conversion at any time prior to the close of business on the second Scheduled Trading Day prior to the Redemption Date, even if the Notes are not otherwise convertible at such time. After that time, the right to convert such Notes pursuant to this Section 14.01(b)(v) shall expire, unless the Company defaults in the payment of the Redemption Price, in which case a Holder of Notes may convert its Notes until the Redemption Price has been paid or duly provided for.
Appears in 1 contract
Sources: Indenture (MICROSTRATEGY Inc)
Conversion Privilege. (a) Subject to and upon compliance with the provisions of this Article 14, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the Business Day immediately preceding August December 15, 2029 2028 under the circumstances and during the periods set forth in Section 14.01(b), and (ii) regardless of the conditions described in Section 14.01(b), on or after August December 15, 2029 2028 and prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 62.3539 15.8821 shares of Common Stock (subject to adjustment as provided in this Article 14, the “Conversion Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.02, the “Conversion Obligation”).
(ab) (i) Prior to the close of business on the Business Day immediately preceding August December 15, 20292028, a Holder may surrender all or any portion of its Notes for conversion at any time during the five Business Day period immediately after any five consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this subsection (b)(iSection 14.01(b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on each such Trading Day and the Conversion Rate on each such Trading DayDay (the “Trading Price Condition”). The Trading Prices shall be determined solicited by the Bid Solicitation Agent and determined by the Company pursuant to this subsection (b)(iSection 14.01(b)(i) and the definition of Trading Price set forth in this Indenture. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine solicit the Trading Price per $1,000 principal amount of Notes unless the Company has requested such determinationsolicitation in writing, and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to solicit and/or determine the Trading Price per $1,000 principal amount of Notes) unless a Holder of at least $1,000,000 3,000,000 aggregate principal amount of Notes requests in writing that the Company make such a determination and provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the Conversion Rate on such Trading DayRate, at which time the Company shall instruct three nationally recognized securities dealers to deliver bids and instruct the Bid Solicitation Agent (if other than the Company) to determinesolicit, or if the Company is acting as Bid Solicitation Agent, the Company shall determinesolicit, the Trading Price per $1,000 principal amount of Notes such bids beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion RateRate and the Company shall instruct the three independent nationally recognized securities dealers to deliver the bids to the Bid Solicitation Agent. The Company will determine the Trading Price in accordance with the bids solicited by the Bid Solicitation Agent. If the Trading Price Condition has been met on any trading day, the Company will so notify the Holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing on or within one business day of such trading day. Any such determination will be conclusive absent manifest error. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not not, when the Company is required to, instruct the Bid Solicitation Agent in writing to determine obtain the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentencethis Section 14.01(b)(i), or if the Company so instructs the Bid Solicitation Agent to obtain bids and the Bid Solicitation Agent fails to make such determinationsolicitation, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination solicitation when obligated as provided in the preceding sentencethis Section 14.01(b)(i), then, in either case, the Trading Price per $1,000 principal amount of Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate on each Trading Day of such failure. If the Trading Price condition Condition set forth above has been met, the Company shall so notify in writing the Holders, the Trustee and the Conversion Agent (if other than the Trustee)) in writing. If, at any time after the Trading Price condition Condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate for such dateTrading Day, the Company shall so notify in writing the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee).
(i) If, prior to in writing that the close of business on the Business Day immediately preceding August 15, 2029, Trading Price Condition is no longer met and thereafter neither the Company elects to:
(A) issue to all or substantially all holders of nor the Common Stock any rights, options or warrants (other than in connection with a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock) entitling them, for a period of not more than 45 calendar days after the announcement date of such issuance, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance; or
(B) distribute to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase securities of the Company (other than pursuant to a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock), which distribution has a per share value, as reasonably determined by the Board of Directors, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution, then, in either case, the Company shall notify in writing all Holders of the Notes, the Trustee and the Conversion Bid Solicitation Agent (if other than the TrusteeCompany) at least 30 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan, no later than the Business Day after the Company becomes aware that such separation has occurred or will occur); provided, however, that if the Company elects Physical Settlement (to the extent that the Company has not elected another Settlement Method to apply, including pursuant to Section 14.02) in the applicable notice in respect of any conversions that occurs from, and including, the date the Company provides such notice to, and including, the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or issuance (or, if earlier, the date the Company announces that such issuance or distribution will not take place) (the “Distribution Trigger Irrevocable Physical Settlement Period”), the Company shall be permitted to provide no less than 10 Scheduled Trading Days’ notice prior to the Ex-Dividend Date for the applicable issuance or distribution, in which case the Company shall be required to settle all conversions of Notes with a Conversion Date occurring during the Distribution Trigger Irrevocable Physical Settlement Period by Physical Settlement, and the Company shall describe the same in such notice. Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at any time solicit bids again until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take place, in each case, even if the Notes are not otherwise convertible at such time. Notwithstanding the foregoing, Holders may not convert their Notes under this Section 14.01(b)(ii) if they participate (other than in the case of a share split or share combination) at the same time and upon the same terms another qualifying request is made as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described under this Section 14.01(b)(ii)(A) or (B) without having to convert their Notes as if they held a number of shares of Common Stock equal to the then-effective Conversion Rate multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. Neither the Trustee not the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether an issuance or distribution described in this clause (ii) has occurredprovided above.
(ii) If a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section 15.02, or if the Company is a party to a Share Exchange Event (other than a Share Exchange Event that is solely for the purpose of changing the Company’s jurisdiction of organization that does not constitute a Fundamental Change or Make-Whole Fundamental Change) that occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, in each case, pursuant to which the Common Stock would be converted into cash, securities or other assets, all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the effective date of the transaction until the earlier of (x) 35 Trading Days after the effective date of such transaction or, if such transaction also constitutes a Fundamental Change, until the close of business on the Business Day immediately preceding the related Fundamental Change Repurchase Date and (y) the second Scheduled Trading Day immediately preceding the Maturity Date. The Company shall notify in writing Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the effective date of such transaction. Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether a Fundamental Change or a Make-Whole Fundamental Change has occurred.
(iii) Prior to the close of business on the Business Day immediately preceding August 15, 2029, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar quarter commencing after the calendar quarter ending on March 31, 2025 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day. The Company shall determine at the beginning of each calendar quarter commencing after March 31, 2025 whether the Notes may be surrendered for conversion in accordance with this clause (iv) and shall provide written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) if the Notes become convertible in accordance with this clause (iv). Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether the condition set forth in this clause (iv) has been met.
(iv) If the Company calls any or all of the Notes for redemption pursuant to Article 16 prior to the close of business on the Business Day immediately preceding August 15, 2029, then a Holder may surrender all or any part of such of its Notes as called for redemption for conversion at any time prior to the close of business on the second Scheduled Trading Day prior to the Redemption Date, even if the Notes are not otherwise convertible at such time. After that time, the right to convert such Notes pursuant to this Section 14.01(b)(v) shall expire, unless the Company defaults in the payment of the Redemption Price, in which case a Holder of Notes may convert its Notes until the Redemption Price has been paid or duly provided for.
Appears in 1 contract
Conversion Privilege. (a) Subject to and upon compliance with the provisions of this Article 14, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the Business Day immediately preceding August March 15, 2029 2028 under the circumstances and during the periods set forth in Section 14.01(b), and (ii) regardless of the conditions described in Section 14.01(b), on or after August March 15, 2029 2028 and prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 62.3539 5.4589 shares of Common Stock (subject to adjustment as provided in this Article 14, the “Conversion Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.02, the “Conversion Obligation”).
(ab) (i) Prior to the close of business on the Business Day immediately preceding August March 15, 20292028, a Holder may surrender all or any portion of its Notes for conversion at any time during the five Business Day period immediately after any five consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this subsection (b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on each such Trading Day and the Conversion Rate on each such Trading Day. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this subsection (b)(i) and the definition of Trading Price set forth in this Indenture. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes unless the Company has requested such determination, and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes) unless a Holder of at least $1,000,000 aggregate principal amount of Notes requests in writing that the Company make such a determination and provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the Conversion Rate on such Trading Day, at which time the Company shall instruct three nationally recognized securities dealers to deliver bids and instruct the Bid Solicitation Agent (if other than the Company) to determine, or if the Company is acting as Bid Solicitation Agent, the Company shall determine, the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not instruct the Bid Solicitation Agent to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentence, or if the Company instructs the Bid Solicitation Agent to obtain bids and the Bid Solicitation Agent fails to make such determination, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, then, in either case, the Trading Price per $1,000 principal amount of Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company shall so notify in writing the Holders, the Trustee and the Conversion Agent (if other than the Trustee). If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate for such date, the Company shall so notify in writing the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee).
(i) If, prior to the close of business on the Business Day immediately preceding August 15, 2029, the Company elects to:
(A) issue to all or substantially all holders of the Common Stock any rights, options or warrants (other than in connection with a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock) entitling them, for a period of not more than 45 calendar days after the announcement date of such issuance, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance; or
(B) distribute to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase securities of the Company (other than pursuant to a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock), which distribution has a per share value, as reasonably determined by the Board of Directors, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution, then, in either case, the Company shall notify in writing all Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) at least 30 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan, no later than the Business Day after the Company becomes aware that such separation has occurred or will occur); provided, however, that if the Company elects Physical Settlement (to the extent that the Company has not elected another Settlement Method to apply, including pursuant to Section 14.02) in the applicable notice in respect of any conversions that occurs from, and including, the date the Company provides such notice to, and including, the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or issuance (or, if earlier, the date the Company announces that such issuance or distribution will not take place) (the “Distribution Trigger Irrevocable Physical Settlement Period”), the Company shall be permitted to provide no less than 10 Scheduled Trading Days’ notice prior to the Ex-Dividend Date for the applicable issuance or distribution, in which case the Company shall be required to settle all conversions of Notes with a Conversion Date occurring during the Distribution Trigger Irrevocable Physical Settlement Period by Physical Settlement, and the Company shall describe the same in such notice. Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at any time until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take place, in each case, even if the Notes are not otherwise convertible at such time. Notwithstanding the foregoing, Holders may not convert their Notes under this Section 14.01(b)(ii) if they participate (other than in the case of a share split or share combination) at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described under this Section 14.01(b)(ii)(A) or (B) without having to convert their Notes as if they held a number of shares of Common Stock equal to the then-effective Conversion Rate multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. Neither the Trustee not the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether an issuance or distribution described in this clause (ii) has occurred.
(ii) If a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section 15.02, or if the Company is a party to a Share Exchange Event (other than a Share Exchange Event that is solely for the purpose of changing the Company’s jurisdiction of organization that does not constitute a Fundamental Change or Make-Whole Fundamental Change) that occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, in each case, pursuant to which the Common Stock would be converted into cash, securities or other assets, all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the effective date of the transaction until the earlier of (x) 35 Trading Days after the effective date of such transaction or, if such transaction also constitutes a Fundamental Change, until the close of business on the Business Day immediately preceding the related Fundamental Change Repurchase Date and (y) the second Scheduled Trading Day immediately preceding the Maturity Date. The Company shall notify in writing Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the effective date of such transaction. Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether a Fundamental Change or a Make-Whole Fundamental Change has occurred.
(iii) Prior to the close of business on the Business Day immediately preceding August 15, 2029, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar quarter commencing after the calendar quarter ending on March 31, 2025 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day. The Company shall determine at the beginning of each calendar quarter commencing after March 31, 2025 whether the Notes may be surrendered for conversion in accordance with this clause (iv) and shall provide written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) if the Notes become convertible in accordance with this clause (iv). Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether the condition set forth in this clause (iv) has been met.
(iv) If the Company calls any or all of the Notes for redemption pursuant to Article 16 prior to the close of business on the Business Day immediately preceding August 15, 2029, then a Holder may surrender all or any part of such of its Notes as called for redemption for conversion at any time prior to the close of business on the second Scheduled Trading Day prior to the Redemption Date, even if the Notes are not otherwise convertible at such time. After that time, the right to convert such Notes pursuant to this Section 14.01(b)(v) shall expire, unless the Company defaults in the payment of the Redemption Price, in which case a Holder of Notes may convert its Notes until the Redemption Price has been paid or duly provided for.
Appears in 1 contract
Sources: Indenture (MICROSTRATEGY Inc)
Conversion Privilege. (a) Subject to and upon in compliance with the provisions of this Article 14, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the Business Day immediately preceding August 15May 1, 2029 2026 under the circumstances and during the periods set forth in Section 14.01(b), and (ii) regardless of the conditions described in Section 14.01(b), on or after August 15May 1, 2029 2026 and prior to the close of business on the second Scheduled Trading Business Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 62.3539 43.8481 shares of Common Stock (subject to adjustment as provided in this Article 14, the “Conversion Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.02, the “Conversion Obligation”).
(ab) (i) Prior to the close of business on the Business Day immediately preceding August 15May 1, 20292026, a Holder may surrender all or any portion of its Notes for conversion at any time during the five consecutive Business Day period immediately after following any five ten consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this subsection (b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on each such Trading Day and the Conversion Rate on each such Trading Day. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this subsection (b)(i) and the definition of Trading Price set forth in this Indenture. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes unless the Company has requested such determination, determination in writing and has provided the Bid Solicitation Agent with the names and contact information of the securities dealers the Company has selected for such purpose; and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000 principal amount of NotesPrice) unless a Holder of at least $1,000,000 2,000,000 aggregate principal amount of Notes requests in writing that the Company make such a determination and provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the Conversion Rate on such Trading Day, at which time the Company shall instruct three nationally recognized securities dealers to deliver bids and instruct the Bid Solicitation Agent in writing (if other than the Company) to determine, or if the Company is acting as Bid Solicitation Agent, the Company shall will determine, the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Bid Solicitation Agent, or if the Company is acting as Bid Solicitation Agent, the Company determines that the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate, and the Company will instruct the three independent nationally recognized securities dealers selected by the Company to deliver bids to the Bid Solicitation Agent (if other than the Company), or if the Company is acting as Bid Solicitation Agent, to the Company. If (x) the Company is not acting as Bid Solicitation Agent, Agent and the Company does not not, when it is required to, instruct the Bid Solicitation Agent to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentenceobtain bids, or if the Company instructs gives such instruction to the Bid Solicitation Agent to obtain bids Agent, and the Bid Solicitation Agent fails to make such determination, determination or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentencedetermination, then, in either case, the Trading Price per $1,000 principal amount of Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company shall so notify in writing the Holders, the Trustee Trustee, and the Conversion Agent (if other than the Trustee)) in writing. Any such determination shall be conclusive absent manifest error. If, at any time after the Trading Price condition set forth above has been met, the Bid Solicitation Agent, or if the Company is acting as Bid Solicitation Agent, the Company, determines that the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate for such date, the Company shall so notify in writing the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee).
(i) If, prior to the close of business on the Business Day immediately preceding August 15, 2029, the Company elects to:
(A) issue to all or substantially all holders of the Common Stock any rights, options or warrants (other than in connection with a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock) entitling them, for a period of not more than 45 calendar days after the announcement date of such issuance, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance; or
(B) distribute to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase securities of the Company (other than pursuant to a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock), which distribution has a per share value, as reasonably determined by the Board of Directors, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution, then, in either case, the Company shall notify in writing all Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) at least 30 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan, no later than the Business Day after the Company becomes aware that such separation has occurred or will occur); provided, however, that if the Company elects Physical Settlement (to the extent that the Company has not elected another Settlement Method to apply, including pursuant to Section 14.02) in the applicable notice in respect of any conversions that occurs from, and including, the date the Company provides such notice to, and including, the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or issuance (or, if earlier, the date the Company announces that such issuance or distribution will not take place) (the “Distribution Trigger Irrevocable Physical Settlement Period”), the Company shall be permitted to provide no less than 10 Scheduled Trading Days’ notice prior to the Ex-Dividend Date for the applicable issuance or distribution, in which case the Company shall be required to settle all conversions of Notes with a Conversion Date occurring during the Distribution Trigger Irrevocable Physical Settlement Period by Physical Settlement, and the Company shall describe the same in such notice. Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at any time until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take place, in each case, even if the Notes are not otherwise convertible at such time. Notwithstanding the foregoing, Holders may not convert their Notes under this Section 14.01(b)(ii) if they participate (other than in the case of a share split or share combination) at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described under this Section 14.01(b)(ii)(A) or (B) without having to convert their Notes as if they held a number of shares of Common Stock equal to the then-effective Conversion Rate multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. Neither the Trustee not the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether an issuance or distribution described in this clause (ii) has occurredwriting.
(ii) If a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section 15.02, or if the Company is a party to a Share Exchange Event (other than a Share Exchange Event that is solely for the purpose of changing the Company’s jurisdiction of organization that does not constitute a Fundamental Change or Make-Whole Fundamental Change) that occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, in each case, pursuant to which the Common Stock would be converted into cash, securities or other assets, all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the effective date of the transaction until the earlier of (x) 35 Trading Days after the effective date of such transaction or, if such transaction also constitutes a Fundamental Change, until the close of business on the Business Day immediately preceding the related Fundamental Change Repurchase Date and (y) the second Scheduled Trading Day immediately preceding the Maturity Date. The Company shall notify in writing Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the effective date of such transaction. Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether a Fundamental Change or a Make-Whole Fundamental Change has occurred.
(iii) Prior to the close of business on the Business Day immediately preceding August 15, 2029, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar quarter commencing after the calendar quarter ending on March 31, 2025 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day. The Company shall determine at the beginning of each calendar quarter commencing after March 31, 2025 whether the Notes may be surrendered for conversion in accordance with this clause (iv) and shall provide written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) if the Notes become convertible in accordance with this clause (iv). Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether the condition set forth in this clause (iv) has been met.
(iv) If the Company calls any or all of the Notes for redemption pursuant to Article 16 prior to the close of business on the Business Day immediately preceding August 15, 2029, then a Holder may surrender all or any part of such of its Notes as called for redemption for conversion at any time prior to the close of business on the second Scheduled Trading Day prior to the Redemption Date, even if the Notes are not otherwise convertible at such time. After that time, the right to convert such Notes pursuant to this Section 14.01(b)(v) shall expire, unless the Company defaults in the payment of the Redemption Price, in which case a Holder of Notes may convert its Notes until the Redemption Price has been paid or duly provided for.
Appears in 1 contract
Sources: Indenture (Snap Inc)
Conversion Privilege. (a) Subject to and upon compliance with the provisions of this Article 14, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the Business Day immediately preceding August 15July 1, 2029 2021 under the circumstances and during the periods set forth in Section 14.01(b), and (ii) regardless irrespective of the conditions described in Section 14.01(b), on or after August 15July 1, 2029 and prior to 2021 until the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 62.3539 14.9685 shares of Common Stock (subject to adjustment as adjusted as provided in this Article 14Section 14.04 as of any date, the “Conversion Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, to the settlement provisions of Section 14.02, the “Conversion Obligation”).
(ab) (i) Prior to the close of business on the Business Day immediately preceding August 15July 1, 20292021, a Holder may surrender all or any portion of its Notes for conversion at any time during the five Business Day period immediately after any five consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this subsection (b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on each such Trading Day and the Conversion Rate on each such Trading Day, subject to compliance with the procedures and conditions set forth in this subsection (b)(i) concerning the Bid Solicitation Agent’s obligation to make a Trading Price determination. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this subsection (b)(i) and the definition of Trading Price set forth in this Indenture. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes unless the Company has requested such determinationdetermination in writing, and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes) unless a Holder of at least $1,000,000 aggregate principal amount of Notes requests in writing that the Company make such a determination and provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the Conversion Rate on such Trading DayRate, at which time the Company shall instruct three nationally recognized securities dealers to deliver bids and instruct the Bid Solicitation Agent (if other than the Company) in writing to determine, or if the Company is acting as Bid Solicitation Agent, the Company shall determine, the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes Note is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not instruct the Bid Solicitation Agent to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentence, or if the Company instructs the Bid Solicitation Agent to obtain bids and the Bid Solicitation Agent fails to make such determination, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, then, in either case, the Trading Price per $1,000 principal amount of Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been metmet on any Trading Day, the Company shall so notify in writing the Holders, the Trustee and the Conversion Agent (if other than the Trustee)) in writing. If, at any time after the Trading Price condition set forth above has been metmet on any Trading Day, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the applicable Conversion Rate for such dateTrading Day, the Company shall so notify in writing the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee).
(i) If, prior to the close of business on the Business Day immediately preceding August 15, 2029, the Company elects to:
(A) issue to all or substantially all holders of the Common Stock any rights, options or warrants (other than in connection with a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock) entitling them, for a period of not more than 45 calendar days after the announcement date of such issuance, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance; or
(B) distribute to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase securities of the Company (other than pursuant to a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock), which distribution has a per share value, as reasonably determined by the Board of Directors, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution, then, in either case, the Company shall notify in writing all Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) at least 30 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan, no later than the Business Day after the Company becomes aware that such separation has occurred or will occur); provided, however, that if the Company elects Physical Settlement (to the extent that the Company has not elected another Settlement Method to apply, including pursuant to Section 14.02) in the applicable notice in respect of any conversions that occurs from, and including, the date the Company provides such notice to, and including, the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or issuance (or, if earlier, the date the Company announces that such issuance or distribution will not take place) (the “Distribution Trigger Irrevocable Physical Settlement Period”), the Company shall be permitted to provide no less than 10 Scheduled Trading Days’ notice prior to the Ex-Dividend Date for the applicable issuance or distribution, in which case the Company shall be required to settle all conversions of Notes with a Conversion Date occurring during the Distribution Trigger Irrevocable Physical Settlement Period by Physical Settlement, and the Company shall describe the same in such notice. Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at any time until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take place, in each case, even if the Notes are not otherwise convertible at such time. Notwithstanding the foregoing, Holders may not convert their Notes under this Section 14.01(b)(ii) if they participate (other than in the case of a share split or share combination) at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described under this Section 14.01(b)(ii)(A) or (B) without having to convert their Notes as if they held a number of shares of Common Stock equal to the then-effective Conversion Rate multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. Neither the Trustee not the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether an issuance or distribution described in this clause (ii) has occurredwriting.
(ii) If a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section 15.02, or if the Company is a party to a Share Exchange Event (other than a Share Exchange Event that is solely for the purpose of changing the Company’s jurisdiction of organization that does not constitute a Fundamental Change or Make-Whole Fundamental Change) that occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, in each case, pursuant to which the Common Stock would be converted into cash, securities or other assets, all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the effective date of the transaction until the earlier of (x) 35 Trading Days after the effective date of such transaction or, if such transaction also constitutes a Fundamental Change, until the close of business on the Business Day immediately preceding the related Fundamental Change Repurchase Date and (y) the second Scheduled Trading Day immediately preceding the Maturity Date. The Company shall notify in writing Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the effective date of such transaction. Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether a Fundamental Change or a Make-Whole Fundamental Change has occurred.
(iii) Prior to the close of business on the Business Day immediately preceding August 15, 2029, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar quarter commencing after the calendar quarter ending on March 31, 2025 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day. The Company shall determine at the beginning of each calendar quarter commencing after March 31, 2025 whether the Notes may be surrendered for conversion in accordance with this clause (iv) and shall provide written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) if the Notes become convertible in accordance with this clause (iv). Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether the condition set forth in this clause (iv) has been met.
(iv) If the Company calls any or all of the Notes for redemption pursuant to Article 16 prior to the close of business on the Business Day immediately preceding August 15, 2029, then a Holder may surrender all or any part of such of its Notes as called for redemption for conversion at any time prior to the close of business on the second Scheduled Trading Day prior to the Redemption Date, even if the Notes are not otherwise convertible at such time. After that time, the right to convert such Notes pursuant to this Section 14.01(b)(v) shall expire, unless the Company defaults in the payment of the Redemption Price, in which case a Holder of Notes may convert its Notes until the Redemption Price has been paid or duly provided for.
Appears in 1 contract
Sources: Indenture (Isis Pharmaceuticals Inc)
Conversion Privilege. (a) Subject to and upon compliance with the provisions of this Article 14, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the Business Day immediately preceding August 15June 1, 2029 under the circumstances and during the periods set forth in Section 14.01(b), and (ii) regardless of the conditions described in Section 14.01(b), on or after August 15June 1, 2029 and prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 62.3539 1.4872 shares of Common Stock (subject to adjustment as provided in this Article 14, the “Conversion Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.02, the “Conversion Obligation”).
(ab) (i) Prior to the close of business on the Business Day immediately preceding August 15June 1, 2029, a Holder may surrender all or any portion of its Notes for conversion at any time during the five Business Day period immediately after any five consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this subsection (b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on each such Trading Day and the Conversion Rate on each such Trading Day. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this subsection (b)(i) and the definition of Trading Price set forth in this Indenture. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes unless the Company has requested such determination, and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes) unless a Holder of at least $1,000,000 aggregate principal amount of Notes requests in writing that the Company make such a determination and provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the Conversion Rate on such Trading Day, at which time the Company shall instruct three nationally recognized securities dealers to deliver bids and instruct the Bid Solicitation Agent (if other than the Company) to determine, or if the Company is acting as Bid Solicitation Agent, the Company shall determine, the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not instruct the Bid Solicitation Agent to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentence, or if the Company instructs the Bid Solicitation Agent to obtain bids and the Bid Solicitation Agent fails to make such determination, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, then, in either case, the Trading Price per $1,000 principal amount of Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company shall so notify in writing the Holders, the Trustee and the Conversion Agent (if other than the Trustee). If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate for such date, the Company shall so notify in writing the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee).
(i) If, prior to the close of business on the Business Day immediately preceding August 15, 2029, the Company elects to:
(A) issue to all or substantially all holders of the Common Stock any rights, options or warrants (other than in connection with a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock) entitling them, for a period of not more than 45 calendar days after the announcement date of such issuance, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance; or
(B) distribute to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase securities of the Company (other than pursuant to a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock), which distribution has a per share value, as reasonably determined by the Board of Directors, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution, then, in either case, the Company shall notify in writing all Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) at least 30 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan, no later than the Business Day after the Company becomes aware that such separation has occurred or will occur); provided, however, that if the Company elects Physical Settlement (to the extent that the Company has not elected another Settlement Method to apply, including pursuant to Section 14.02) in the applicable notice in respect of any conversions that occurs from, and including, the date the Company provides such notice to, and including, the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or issuance (or, if earlier, the date the Company announces that such issuance or distribution will not take place) (the “Distribution Trigger Irrevocable Physical Settlement Period”), the Company shall be permitted to provide no less than 10 Scheduled Trading Days’ notice prior to the Ex-Dividend Date for the applicable issuance or distribution, in which case the Company shall be required to settle all conversions of Notes with a Conversion Date occurring during the Distribution Trigger Irrevocable Physical Settlement Period by Physical Settlement, and the Company shall describe the same in such notice. Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at any time until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take place, in each case, even if the Notes are not otherwise convertible at such time. Notwithstanding the foregoing, Holders may not convert their Notes under this Section 14.01(b)(ii) if they participate (other than in the case of a share split or share combination) at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described under this Section 14.01(b)(ii)(A) or (B) without having to convert their Notes as if they held a number of shares of Common Stock equal to the then-effective Conversion Rate multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. Neither the Trustee not the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether an issuance or distribution described in this clause (ii) has occurred.
(ii) If a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section 15.02, or if the Company is a party to a Share Exchange Event (other than a Share Exchange Event that is solely for the purpose of changing the Company’s jurisdiction of organization that does not constitute a Fundamental Change or Make-Whole Fundamental Change) that occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, in each case, pursuant to which the Common Stock would be converted into cash, securities or other assets, all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the effective date of the transaction until the earlier of (x) 35 Trading Days after the effective date of such transaction or, if such transaction also constitutes a Fundamental Change, until the close of business on the Business Day immediately preceding the related Fundamental Change Repurchase Date and (y) the second Scheduled Trading Day immediately preceding the Maturity Date. The Company shall notify in writing Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the effective date of such transaction. Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether a Fundamental Change or a Make-Whole Fundamental Change has occurred.
(iii) Prior to the close of business on the Business Day immediately preceding August 15, 2029, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar quarter commencing after the calendar quarter ending on March 31, 2025 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day. The Company shall determine at the beginning of each calendar quarter commencing after March 31, 2025 whether the Notes may be surrendered for conversion in accordance with this clause (iv) and shall provide written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) if the Notes become convertible in accordance with this clause (iv). Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether the condition set forth in this clause (iv) has been met.
(iv) If the Company calls any or all of the Notes for redemption pursuant to Article 16 prior to the close of business on the Business Day immediately preceding August 15, 2029, then a Holder may surrender all or any part of such of its Notes as called for redemption for conversion at any time prior to the close of business on the second Scheduled Trading Day prior to the Redemption Date, even if the Notes are not otherwise convertible at such time. After that time, the right to convert such Notes pursuant to this Section 14.01(b)(v) shall expire, unless the Company defaults in the payment of the Redemption Price, in which case a Holder of Notes may convert its Notes until the Redemption Price has been paid or duly provided for.
Appears in 1 contract
Sources: Indenture (MICROSTRATEGY Inc)
Conversion Privilege. (a) Subject to and upon compliance with the provisions of this Article 14, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the Business Day immediately preceding August 15November 1, 2029 2028 under the circumstances and during the periods set forth in Section 14.01(b), and (ii) regardless of the conditions described in Section 14.01(b), on or after August 15November 1, 2029 2028 and prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 62.3539 10.3050 shares of Common Stock (subject to adjustment as provided in this Article 14, the “Conversion Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.02, the “Conversion Obligation”).
(ab) (i) Prior to the close of business on the Business Day immediately preceding August 15November 1, 20292028, a Holder may surrender all or any portion of its Notes for conversion at any time during the five Business Day period immediately after any five consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this subsection (b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on each such Trading Day and the Conversion Rate on each such Trading Day. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this subsection (b)(i) and the definition of Trading Price set forth in this Indenture. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes unless the Company has requested such determination, and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes) unless a Holder of at least $1,000,000 3,000,000 aggregate principal amount of Notes requests in writing that the Company make such a determination and provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the Conversion Rate on such Trading Day, at which time the Company shall instruct three nationally recognized securities dealers to deliver bids and instruct the Bid Solicitation Agent (if other than the Company) to determine, or if the Company is acting as Bid Solicitation Agent, the Company shall determine, the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not not, when the Company is required to, instruct the Bid Solicitation Agent to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentence, or if the Company instructs the Bid Solicitation Agent to obtain bids and the Bid Solicitation Agent fails to make such determination, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, then, in either case, the Trading Price per $1,000 principal amount of Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company shall so notify in writing the Holders, the Trustee and the Conversion Agent (if other than the Trustee). If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate for such date, the Company shall so notify in writing the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee).
(i) If, prior to the close of business on the Business Day immediately preceding August 15, 2029, and thereafter neither the Company elects to:
(A) issue to all or substantially all holders of nor the Common Stock any rights, options or warrants (other than in connection with a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock) entitling them, for a period of not more than 45 calendar days after the announcement date of such issuance, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance; or
(B) distribute to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase securities of the Company (other than pursuant to a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock), which distribution has a per share value, as reasonably determined by the Board of Directors, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution, then, in either case, the Company shall notify in writing all Holders of the Notes, the Trustee and the Conversion Bid Solicitation Agent (if other than the TrusteeCompany) at least 30 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan, no later than the Business Day after the Company becomes aware that such separation has occurred or will occur); provided, however, that if the Company elects Physical Settlement (to the extent that the Company has not elected another Settlement Method to apply, including pursuant to Section 14.02) in the applicable notice in respect of any conversions that occurs from, and including, the date the Company provides such notice to, and including, the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or issuance (or, if earlier, the date the Company announces that such issuance or distribution will not take place) (the “Distribution Trigger Irrevocable Physical Settlement Period”), the Company shall be permitted to provide no less than 10 Scheduled Trading Days’ notice prior to the Ex-Dividend Date for the applicable issuance or distribution, in which case the Company shall be required to settle all conversions of Notes with a Conversion Date occurring during solicit bids (or determine the Distribution Trigger Irrevocable Physical Settlement Period by Physical Settlement, and the Company shall describe the same in such notice. Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at any time until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take place, in each case, even if the Notes are not otherwise convertible at such time. Notwithstanding the foregoing, Holders may not convert their Notes under this Section 14.01(b)(ii) if they participate (other than in the case of a share split or share combination) at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described under this Section 14.01(b)(ii)(A) or (B) without having to convert their Notes as if they held a number of shares of Common Stock equal to the then-effective Conversion Rate multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. Neither the Trustee not the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether an issuance or distribution described in this clause (ii) has occurred.
(ii) If a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section 15.02, or if the Company is a party to a Share Exchange Event (other than a Share Exchange Event that is solely for the purpose of changing the Company’s jurisdiction of organization that does not constitute a Fundamental Change or Make-Whole Fundamental Change) that occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, in each case, pursuant to which the Common Stock would be converted into cash, securities or other assets, all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the effective date of the transaction until the earlier of (x) 35 Trading Days after the effective date of such transaction or, if such transaction also constitutes a Fundamental Change, until the close of business on the Business Day immediately preceding the related Fundamental Change Repurchase Date and (y) the second Scheduled Trading Day immediately preceding the Maturity Date. The Company shall notify in writing Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the effective date of such transaction. Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether a Fundamental Change or a Make-Whole Fundamental Change has occurred.
(iii) Prior to the close of business on the Business Day immediately preceding August 15, 2029, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar quarter commencing after the calendar quarter ending on March 31, 2025 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day. The Company shall determine at the beginning of each calendar quarter commencing after March 31, 2025 whether the Notes may be surrendered for conversion in accordance with this clause (iv) and shall provide written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) if the Notes become convertible in accordance with this clause (iv). Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether the condition as set forth in this clause Indenture) again until a new Holder request is made as provided in this subsection (iv) has been metb)(i).
(iv) If the Company calls any or all of the Notes for redemption pursuant to Article 16 prior to the close of business on the Business Day immediately preceding August 15, 2029, then a Holder may surrender all or any part of such of its Notes as called for redemption for conversion at any time prior to the close of business on the second Scheduled Trading Day prior to the Redemption Date, even if the Notes are not otherwise convertible at such time. After that time, the right to convert such Notes pursuant to this Section 14.01(b)(v) shall expire, unless the Company defaults in the payment of the Redemption Price, in which case a Holder of Notes may convert its Notes until the Redemption Price has been paid or duly provided for.
Appears in 1 contract
Sources: Indenture (BridgeBio Pharma, Inc.)
Conversion Privilege. (a) Subject to and upon compliance with the provisions of this Article 14, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the Business Day immediately preceding August 15July 1, 2029 2027 under the circumstances and during the periods set forth in Section 14.01(b), and (ii) regardless of the conditions described in Section 14.01(b), on or after August 15July 1, 2029 2027 and prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 62.3539 6.3492 shares of Common Stock (subject to adjustment as provided in this Article 14, the “Conversion Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.02, the “Conversion Obligation”).
(a) (i) Prior to the close of business on the Business Day immediately preceding August 15July 1, 20292027, a Holder may surrender all or any portion of its Notes for conversion at any time during the five Business Day period immediately after any five ten consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this subsection (b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on each such Trading Day and the Conversion Rate on each such Trading Day. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this subsection (b)(i) and the definition of Trading Price set forth in this Indenture. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes unless the Company has requested such determination, and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes) unless a Holder of at least $1,000,000 5,000,000 aggregate principal amount of Notes requests in writing that the Company make such a determination and provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the Conversion Rate on such Trading Day, at which time the Company shall instruct three nationally recognized securities dealers to deliver bids and instruct the Bid Solicitation Agent (if other than the Company) to determine, or if the Company is acting as Bid Solicitation Agent, the Company shall determine, the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not not, when the Company is required to, instruct the Bid Solicitation Agent to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentence, or if the Company instructs gives such instruction to the Bid Solicitation Agent to obtain bids and the Bid Solicitation Agent fails to make such determination, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, then, in either case, the Trading Price per $1,000 principal amount of Notes on any date shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company shall so notify in writing the Holders, the Trustee and the Conversion Agent (if other than the Trustee)) in writing. Any such determination shall be conclusive absent manifest error. If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate for such date, the Company shall so notify in writing the Holders of the NotesHolders, the Trustee and the Conversion Agent (if other than the Trustee) in writing and thereafter neither the Company nor the Bid Solicitation Agent (if other than the Company) shall be required to solicit bids (or determine the Trading Price of the Notes as set forth in this Indenture) again unless a new Holder request is made as provided in this subsection (b)(i).
(iii) If, prior to the close of business on the Business Day immediately preceding August 15July 1, 20292027, the Company elects to:
(A) issue distribute to all or substantially all holders of the Common Stock any rights, options or warrants (other than in connection with a stockholder rights plan so long as prior to the separation of such rights have not separated from the shares of the Common Stock) entitling them, for a period of not more than 45 60 calendar days after the announcement date of such issuancedistribution, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuancedistribution; or
(B) distribute to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase securities of the Company (other than pursuant to in connection with a stockholder rights plan so long as prior to separation of such rights have not separated from the shares of the Common Stock), which distribution has a per share value, as reasonably determined by the Board of DirectorsCompany in good faith, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution, then, in either case, the Company shall notify in writing all Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) in writing at least 30 26 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan, no later than the Business Day as soon as reasonably practicable after the Company becomes aware that such separation or triggering event has occurred or will occur); provided, however, that if the Company elects is then otherwise permitted to settle conversions of Notes by Physical Settlement (to and, for the extent that the Company avoidance of doubt, has not irrevocably elected another Settlement Method to applyfor conversions of Notes), including pursuant to Section 14.02) in the applicable notice in respect of any conversions that occurs from, and including, the date then the Company provides may instead elect to provide such notice to, and including, the close of business on the Business Day immediately preceding the at least five Scheduled Trading Days prior to such Ex-Dividend Date for such distribution or issuance (or, if earlier, the date the Company announces that such issuance or distribution will not take place) (the “Distribution Trigger Irrevocable Physical Settlement Period”), the Company shall be permitted to provide no less than 10 Scheduled Trading Days’ notice prior to the Ex-Dividend Date for the applicable issuance or distributionDate, in which case the Company shall be required to settle all conversions of Notes with a Conversion Date occurring during the Distribution Trigger Irrevocable Physical Settlement Period period on or after the date the Company provides such notice and before such Ex-Dividend Date (or, if earlier, the date the Company announces that such issuance or distribution will not take place) by Physical Settlement, and the Company shall describe the same in such notice. Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at any time until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take place, in each case, even if the Notes are not otherwise convertible at such time. Notwithstanding the foregoing, ; provided that Holders may not convert their Notes under pursuant to this Section 14.01(b)(iisubsection (b)(ii) if they participate (other than in the case of a share split or share combination) participate, at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described under this Section 14.01(b)(ii)(Ain clause (A) or (B) of this subsection (b)(ii) without having to convert their Notes as if they held a number of shares of Common Stock equal to the then-effective Conversion Rate Rate, multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. Neither the Trustee not the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether an issuance or distribution described in this clause (ii) has occurred.
(iiiii) If (A) a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close of business on the Business Day immediately preceding August 15July 1, 20292027, regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section 15.02, or (B) if the Company is a party to a Share Exchange Event (other than a Share Exchange Event that is solely for the purpose of changing the Company’s jurisdiction of organization that (x) does not constitute a Fundamental Change or a Make-Whole Fundamental ChangeChange and (y) results in a reclassification, conversion or exchange of outstanding shares of Common Stock solely into shares of common stock of the surviving entity and such common stock becomes Reference Property for the Notes) that occurs prior to the close of business on the Business Day immediately preceding August 15July 1, 20292027 (each such Fundamental Change, in each caseMake-Whole Fundamental Change or Share Exchange Event, pursuant to which the Common Stock would be converted into cash, securities or other assetsa “Corporate Event”), all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the effective date of the transaction such Corporate Event until the earlier of (x) 35 Trading Days after the effective date of the Corporate Event (or, if the Company gives notice after the effective date of such transaction Corporate Event, until 35 Trading Days after the date the Company gives notice of such Corporate Event) or, if such transaction Corporate Event also constitutes a Fundamental Change (other than an Exempted Fundamental Change), until the close of business on the Business Day immediately preceding the related Fundamental Change Repurchase Date and (y) the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date. The Company shall notify in writing Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than in writing as promptly as practicable following the effective date of such transaction. Neither Corporate Event, but in no event later than one Business Day after the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination effective date of whether a Fundamental Change or a Make-Whole Fundamental Change has occurredsuch Corporate Event.
(iiiiv) Prior to the close of business on the Business Day immediately preceding August 15July 1, 20292027, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar quarter commencing after the calendar quarter ending on March January 31, 2025 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day. The Company shall determine at the beginning of each calendar quarter commencing after March 31, 2025 whether the Notes may be surrendered for conversion in accordance with this clause (iv) and shall provide written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) if the Notes become convertible in accordance with this clause (iv). Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether the condition set forth in this clause (iv) has been met.
(ivv) If the Company calls any or all of the Notes for redemption Optional Redemption pursuant to Article 16 prior to the close of business on the Business Day immediately preceding August 15, 202916, then a Holder may surrender all or any part of such portion of its Called Notes as called for redemption for conversion at any time prior to the close of business on the second Scheduled Trading Day prior to immediately preceding the Redemption Date, even if the Called Notes are not otherwise convertible at such time. After that time, the right to convert such Called Notes pursuant to this Section 14.01(b)(v) on account of the Company’s delivery of a Notice of Redemption shall expire, unless the Company defaults in the payment of the Redemption Price, in which case a Holder of Called Notes may convert all or a portion of its Called Notes until the close of business on the Scheduled Trading Day immediately preceding the date on which the Redemption Price has been paid or duly provided for. If the Company elects to redeem fewer than all of the outstanding Notes for Optional Redemption pursuant to Article 16, and the Holder of any Note (or any owner of a beneficial interest in any Global Note) is reasonably not able to determine, prior to the close of business on the 24th Scheduled Trading Day immediately preceding the relevant Redemption Date (or if, as permitted by Section 16.02(a), the Company delivers a Notice of Redemption not less than 15 calendar days nor more than 45 Scheduled Trading Days prior to the related Redemption Date, then prior to close of business on the 14th calendar day immediately before the relevant Redemption Date), whether such Note or beneficial interest, as applicable, is to be redeemed pursuant to such redemption, then such Holder or owner, as applicable, will be entitled to convert such Note or beneficial interest, as applicable, at any time during the related Redemption Period, and each such conversion will be deemed to be of a Note called for Optional Redemption, and such Note or beneficial interest will be deemed called for Optional Redemption solely for the purposes of such conversion (“Deemed Redemption”). If a Holder elects to convert Called Notes during the related Redemption Period, the Company will, under certain circumstances, increase the Conversion Rate for such Called Notes pursuant to Section 14.03. Accordingly, if the Company elects to redeem fewer than all of the outstanding Notes pursuant to Article 16, Holders of the Notes that are not Called Notes shall not be entitled to convert such Notes pursuant to this Section 14.01(b)(v) and shall not be entitled to an increase in the Conversion Rate on account of the Notice of Redemption for conversions of such Notes during the related Redemption Period, even if such Notes are otherwise convertible pursuant to any other provision of this Section 14.01(b). The Trustee shall have no obligation to make any determination in connection with the foregoing.
Appears in 1 contract
Sources: Indenture (Snowflake Inc.)
Conversion Privilege. (a) Subject to and upon compliance with the provisions of this Article 14, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the Business Day immediately preceding August 15April 3, 2029 2028 under the circumstances and during the periods set forth in Section 14.01(b), and (ii) regardless of the conditions described in Section 14.01(b), on or after August 15April 3, 2029 2028 and prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 62.3539 24.5586 shares of Common Stock (subject to adjustment as provided in this Article 14, the “Conversion Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.02, the “Conversion Obligation”).
(ab) (i) Prior to the close of business on the Business Day immediately preceding August 15April 3, 20292028, a Holder may surrender all or any portion of its Notes for conversion at any time during the five Business Day period immediately after any five ten consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this subsection (b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on each such Trading Day and the Conversion Rate on each such Trading Day. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this subsection (b)(i) and the definition of Trading Price set forth in this Indenture. The Unless the Company is acting as Bid Solicitation Agent, the Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company (which may include one or more of the Initial Purchasers or their Affiliates) pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes unless the Company has requested such determination, and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes) unless a Holder of at least $1,000,000 3,000,000 aggregate principal amount of Notes requests in writing that the Company make such a determination and provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the Conversion Rate on such Trading Day, at which time the Company shall instruct three nationally recognized securities dealers to deliver bids and instruct the Bid Solicitation Agent (if other than the Company) to determine, or if the Company is acting as Bid Solicitation Agent, the Company shall determine, the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion RateRate and the Company will instruct the three independent nationally recognized securities dealers to deliver bids to the Bid Solicitation Agent. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not not, when the Company is required to, instruct the Bid Solicitation Agent to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentence, or if the Company instructs the Bid Solicitation Agent to obtain bids and the Bid Solicitation Agent fails to make such determination, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, then, in either case, the Trading Price per $1,000 principal amount of Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company shall so notify in writing the Holders, the Trustee and the Conversion Agent (if other than the Trustee)) in writing. If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate for such date, the Company shall so notify in writing the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee).
(i) If, prior to the close of business on the Business Day immediately preceding August 15, 2029, in writing and thereafter neither the Company elects to:
(A) issue to all or substantially all holders of nor the Common Stock any rights, options or warrants (other than in connection with a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock) entitling them, for a period of not more than 45 calendar days after the announcement date of such issuance, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance; or
(B) distribute to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase securities of the Company (other than pursuant to a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock), which distribution has a per share value, as reasonably determined by the Board of Directors, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution, then, in either case, the Company shall notify in writing all Holders of the Notes, the Trustee and the Conversion Bid Solicitation Agent (if other than the TrusteeCompany) at least 30 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan, no later than the Business Day after the Company becomes aware that such separation has occurred or will occur); provided, however, that if the Company elects Physical Settlement (to the extent that the Company has not elected another Settlement Method to apply, including pursuant to Section 14.02) in the applicable notice in respect of any conversions that occurs from, and including, the date the Company provides such notice to, and including, the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or issuance (or, if earlier, the date the Company announces that such issuance or distribution will not take place) (the “Distribution Trigger Irrevocable Physical Settlement Period”), the Company shall be permitted to provide no less than 10 Scheduled Trading Days’ notice prior to the Ex-Dividend Date for the applicable issuance or distribution, in which case the Company shall be required to settle all conversions of Notes with a Conversion Date occurring during solicit bids (or determine the Distribution Trigger Irrevocable Physical Settlement Period by Physical Settlement, and the Company shall describe the same in such notice. Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at any time until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take place, in each case, even if the Notes are not otherwise convertible at such time. Notwithstanding the foregoing, Holders may not convert their Notes under this Section 14.01(b)(ii) if they participate (other than in the case of a share split or share combination) at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described under this Section 14.01(b)(ii)(A) or (B) without having to convert their Notes as if they held a number of shares of Common Stock equal to the then-effective Conversion Rate multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. Neither the Trustee not the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether an issuance or distribution described in this clause (ii) has occurred.
(ii) If a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section 15.02, or if the Company is a party to a Share Exchange Event (other than a Share Exchange Event that is solely for the purpose of changing the Company’s jurisdiction of organization that does not constitute a Fundamental Change or Make-Whole Fundamental Change) that occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, in each case, pursuant to which the Common Stock would be converted into cash, securities or other assets, all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the effective date of the transaction until the earlier of (x) 35 Trading Days after the effective date of such transaction or, if such transaction also constitutes a Fundamental Change, until the close of business on the Business Day immediately preceding the related Fundamental Change Repurchase Date and (y) the second Scheduled Trading Day immediately preceding the Maturity Date. The Company shall notify in writing Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the effective date of such transaction. Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether a Fundamental Change or a Make-Whole Fundamental Change has occurred.
(iii) Prior to the close of business on the Business Day immediately preceding August 15, 2029, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar quarter commencing after the calendar quarter ending on March 31, 2025 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day. The Company shall determine at the beginning of each calendar quarter commencing after March 31, 2025 whether the Notes may be surrendered for conversion in accordance with this clause (iv) and shall provide written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) if the Notes become convertible in accordance with this clause (iv). Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether the condition as set forth in this clause Indenture) again until a new Holder request is made as provided in this subsection (iv) has been metb)(i).
(iv) If the Company calls any or all of the Notes for redemption pursuant to Article 16 prior to the close of business on the Business Day immediately preceding August 15, 2029, then a Holder may surrender all or any part of such of its Notes as called for redemption for conversion at any time prior to the close of business on the second Scheduled Trading Day prior to the Redemption Date, even if the Notes are not otherwise convertible at such time. After that time, the right to convert such Notes pursuant to this Section 14.01(b)(v) shall expire, unless the Company defaults in the payment of the Redemption Price, in which case a Holder of Notes may convert its Notes until the Redemption Price has been paid or duly provided for.
Appears in 1 contract
Sources: Indenture (Cerence Inc.)
Conversion Privilege. (a) Subject to and upon compliance with the provisions of this Article 14, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral a multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the Business Day immediately preceding August July 15, 2029 2026 under the circumstances and during the periods set forth in Section 14.01(b), and (ii) regardless of the conditions described in Section 14.01(b), on or after August July 15, 2029 2026 and prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 62.3539 123.4568 shares of Common Stock (subject to adjustment as provided in this Article 14, the “Conversion Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.02, the “Conversion Obligation”).
(ab) (i) Prior to the close of business on the Business Day immediately preceding August July 15, 20292026, a Holder may surrender all or any portion of its Notes for conversion at any time during the five Business Day period immediately after any five ten consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a written request by a Holder of Notes in accordance with this subsection (b)(iSection 14.01(b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on each such Trading Day and the Conversion Rate on each such Trading Day. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this subsection (b)(iSection 14.01(b)(i) and the definition of Trading Price set forth in this Indenture. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes unless the Company has requested such determinationdetermination in writing, and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes) unless a Holder of at least $1,000,000 2,000,000 aggregate principal amount of Notes requests in writing that the Company make such a determination and provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the Conversion Rate on such Trading DayRate, at which time the Company shall instruct three nationally recognized securities dealers to deliver bids and instruct the Bid Solicitation Agent in writing (if other than the Company) to determine, or if the Company is acting as Bid Solicitation Agent, the Company shall determine, determine the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate. At such time as the Company directs the Bid Solicitation Agent in writing to solicit bid quotations, the Company shall provide the Bid Solicitation Agent with the names and contact details of the three independent nationally recognized securities dealers selected by the Company, and the Company shall direct those security dealers to provide bids to the Bid Solicitation Agent. Any such determination will be conclusive absent manifest error. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not not, when the Company is required to, instruct the Bid Solicitation Agent to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentenceobtain bids, or if the Company so instructs the Bid Solicitation Agent to obtain bids and the Bid Solicitation Agent fails to make such determination, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, determination. then, in either case, the Trading Price per $1,000 principal amount of Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company shall so notify in writing the Holders, the Trustee and the Conversion Agent (if other than the Trustee)) in writing. If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate for such date, the Company shall so notify in writing the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee).
(i) If, prior to the close of business on the Business Day immediately preceding August 15, 2029, the Company elects to:
(A) issue to all or substantially all holders of the Common Stock any rights, options or warrants (other than in connection with a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock) entitling them, for a period of not more than 45 calendar days after the announcement date of such issuance, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance; or
(B) distribute to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase securities of the Company (other than pursuant to a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock), which distribution has a per share value, as reasonably determined by the Board of Directors, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution, then, in either case, the Company shall notify in writing all Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) at least 30 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan, no later than the Business Day after the Company becomes aware that such separation has occurred or will occur); provided, however, that if the Company elects Physical Settlement (to the extent that the Company has not elected another Settlement Method to apply, including pursuant to Section 14.02) in the applicable notice in respect of any conversions that occurs from, and including, the date the Company provides such notice to, and including, the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or issuance (or, if earlier, the date the Company announces that such issuance or distribution will not take place) (the “Distribution Trigger Irrevocable Physical Settlement Period”), the Company shall be permitted to provide no less than 10 Scheduled Trading Days’ notice prior to the Ex-Dividend Date for the applicable issuance or distribution, in which case the Company shall be required to settle all conversions of Notes with a Conversion Date occurring during the Distribution Trigger Irrevocable Physical Settlement Period by Physical Settlement, and the Company shall describe the same in such notice. Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at any time until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take place, in each case, even if the Notes are not otherwise convertible at such time. Notwithstanding the foregoing, Holders may not convert their Notes under this Section 14.01(b)(ii) if they participate (other than in the case of a share split or share combination) at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described under this Section 14.01(b)(ii)(A) or (B) without having to convert their Notes as if they held a number of shares of Common Stock equal to the then-effective Conversion Rate multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. Neither the Trustee not the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether an issuance or distribution described in this clause (ii) has occurred.
(ii) If a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section 15.02, or if the Company is a party to a Share Exchange Event (other than a Share Exchange Event that is solely for the purpose of changing the Company’s jurisdiction of organization that does not constitute a Fundamental Change or Make-Whole Fundamental Change) that occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, in each case, pursuant to which the Common Stock would be converted into cash, securities or other assets, all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the effective date of the transaction until the earlier of (x) 35 Trading Days after the effective date of such transaction or, if such transaction also constitutes a Fundamental Change, until the close of business on the Business Day immediately preceding the related Fundamental Change Repurchase Date and (y) the second Scheduled Trading Day immediately preceding the Maturity Date. The Company shall notify in writing Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the effective date of such transaction. Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether a Fundamental Change or a Make-Whole Fundamental Change has occurred.
(iii) Prior to the close of business on the Business Day immediately preceding August 15, 2029, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar quarter commencing after the calendar quarter ending on March 31, 2025 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day. The Company shall determine at the beginning of each calendar quarter commencing after March 31, 2025 whether the Notes may be surrendered for conversion in accordance with this clause (iv) and shall provide written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing, and thereafter neither the Company nor the Bid Solicitation Agent (if other than the Company) shall be required to solicit bids (or determine the Trading Price of the Notes become convertible in accordance with this clause (iv). Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether the condition as set forth in this clause (ivIndenture) has been met.
(iv) If the Company calls any or all of the Notes for redemption pursuant to Article 16 prior to the close of business on the Business Day immediately preceding August 15, 2029, then again until a new Holder may surrender all or any part of such of its Notes as called for redemption for conversion at any time prior to the close of business on the second Scheduled Trading Day prior to the Redemption Date, even if the Notes are not otherwise convertible at such time. After that time, the right to convert such Notes request is made pursuant to this Section 14.01(b)(v) shall expire, unless the Company defaults in the payment of the Redemption Price, in which case a Holder of Notes may convert its Notes until the Redemption Price has been paid or duly provided for14.01(b)(i).
Appears in 1 contract
Conversion Privilege. (a) Subject to and upon in compliance with the provisions of this Article 14, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the Business Day immediately preceding August 15February 1, 2029 2027 under the circumstances and during the periods set forth in Section 14.01(b), and (ii) regardless of the conditions described in Section 14.01(b), on or after August 15February 1, 2029 2027 and prior to the close of business on the second Scheduled Trading Business Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 62.3539 11.2042 shares of Common Stock (subject to adjustment as provided in this Article 14, the “Conversion Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.02, the “Conversion Obligation”).
(ab) (i) Prior to the close of business on the Business Day immediately preceding August 15February 1, 20292027, a Holder may surrender all or any portion of its Notes for conversion at any time during the five consecutive Business Day period immediately after following any five ten consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this subsection (b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on each such Trading Day and the Conversion Rate on each such Trading Day. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this subsection (b)(i) and the definition of Trading Price set forth in this Indenture. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes unless the Company has requested such determination, determination in writing and has provided the Bid Solicitation Agent with the names and contact information of the securities dealers the Company has selected for such purpose; and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000 principal amount of NotesPrice) unless a Holder of at least $1,000,000 2,000,000 aggregate principal amount of Notes requests in writing that the Company make (or such a determination and lesser amount as may then be outstanding) provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the Conversion Rate on such Trading Day, at which time the Company shall instruct three nationally recognized securities dealers to deliver bids and instruct the Bid Solicitation Agent in writing (if other than the Company) to determine, or if the Company is acting as Bid Solicitation Agent, the Company shall will determine, the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Bid Solicitation Agent, or if the Company is acting as Bid Solicitation Agent, the Company determines that the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate, and the Company will instruct the three independent nationally recognized securities dealers selected by the Company to deliver bids to the Bid Solicitation Agent (if other than the Company), or if the Company is acting as Bid Solicitation Agent, to the Company. If (x) the Company is not acting as Bid Solicitation Agent, Agent and the Company does not not, when it is required to, instruct the Bid Solicitation Agent to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentenceobtain bids, or if the Company instructs gives such instruction to the Bid Solicitation Agent to obtain bids Agent, and the Bid Solicitation Agent fails to make such determination, determination or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentencedetermination, then, in either case, the Trading Price per $1,000 principal amount of Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company shall so notify in writing the Holders, the Trustee Trustee, and the Conversion Agent (if other than the Trustee)) in writing. Any such determination shall be conclusive absent manifest error. If, at any time after the Trading Price condition set forth above has been met, the Bid Solicitation Agent, or if the Company is acting as Bid Solicitation Agent, the Company, determines that the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate for such date, the Company shall so notify in writing the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee).
(i) If, prior to the close of business on the Business Day immediately preceding August 15, 2029, the Company elects to:
(A) issue to all or substantially all holders of the Common Stock any rights, options or warrants (other than in connection with a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock) entitling them, for a period of not more than 45 calendar days after the announcement date of such issuance, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance; or
(B) distribute to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase securities of the Company (other than pursuant to a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock), which distribution has a per share value, as reasonably determined by the Board of Directors, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution, then, in either case, the Company shall notify in writing all Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) at least 30 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan, no later than the Business Day after the Company becomes aware that such separation has occurred or will occur); provided, however, that if the Company elects Physical Settlement (to the extent that the Company has not elected another Settlement Method to apply, including pursuant to Section 14.02) in the applicable notice in respect of any conversions that occurs from, and including, the date the Company provides such notice to, and including, the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or issuance (or, if earlier, the date the Company announces that such issuance or distribution will not take place) (the “Distribution Trigger Irrevocable Physical Settlement Period”), the Company shall be permitted to provide no less than 10 Scheduled Trading Days’ notice prior to the Ex-Dividend Date for the applicable issuance or distribution, in which case the Company shall be required to settle all conversions of Notes with a Conversion Date occurring during the Distribution Trigger Irrevocable Physical Settlement Period by Physical Settlement, and the Company shall describe the same in such notice. Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at any time until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take place, in each case, even if the Notes are not otherwise convertible at such time. Notwithstanding the foregoing, Holders may not convert their Notes under this Section 14.01(b)(ii) if they participate (other than in the case of a share split or share combination) at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described under this Section 14.01(b)(ii)(A) or (B) without having to convert their Notes as if they held a number of shares of Common Stock equal to the then-effective Conversion Rate multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. Neither the Trustee not the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether an issuance or distribution described in this clause (ii) has occurredwriting.
(ii) If a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section 15.02, or if the Company is a party to a Share Exchange Event (other than a Share Exchange Event that is solely for the purpose of changing the Company’s jurisdiction of organization that does not constitute a Fundamental Change or Make-Whole Fundamental Change) that occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, in each case, pursuant to which the Common Stock would be converted into cash, securities or other assets, all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the effective date of the transaction until the earlier of (x) 35 Trading Days after the effective date of such transaction or, if such transaction also constitutes a Fundamental Change, until the close of business on the Business Day immediately preceding the related Fundamental Change Repurchase Date and (y) the second Scheduled Trading Day immediately preceding the Maturity Date. The Company shall notify in writing Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the effective date of such transaction. Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether a Fundamental Change or a Make-Whole Fundamental Change has occurred.
(iii) Prior to the close of business on the Business Day immediately preceding August 15, 2029, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar quarter commencing after the calendar quarter ending on March 31, 2025 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day. The Company shall determine at the beginning of each calendar quarter commencing after March 31, 2025 whether the Notes may be surrendered for conversion in accordance with this clause (iv) and shall provide written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) if the Notes become convertible in accordance with this clause (iv). Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether the condition set forth in this clause (iv) has been met.
(iv) If the Company calls any or all of the Notes for redemption pursuant to Article 16 prior to the close of business on the Business Day immediately preceding August 15, 2029, then a Holder may surrender all or any part of such of its Notes as called for redemption for conversion at any time prior to the close of business on the second Scheduled Trading Day prior to the Redemption Date, even if the Notes are not otherwise convertible at such time. After that time, the right to convert such Notes pursuant to this Section 14.01(b)(v) shall expire, unless the Company defaults in the payment of the Redemption Price, in which case a Holder of Notes may convert its Notes until the Redemption Price has been paid or duly provided for.
Appears in 1 contract
Sources: Indenture (Snap Inc)
Conversion Privilege. (a) Subject to and upon compliance with the provisions of this Article 14, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the Business Day immediately preceding August 15May 1, 2029 2026 under the circumstances and during the periods set forth in Section 14.01(b), and (ii) regardless of the conditions described in Section 14.01(b), on or after August 15May 1, 2029 2026 and prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 62.3539 5.2809 shares of Class A Common Stock (subject to adjustment as provided in this Article 14, the “Conversion Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.02, the “Conversion Obligation”).
(ab) (i) Prior to the close of business on the Business Day immediately preceding August 15May 1, 20292026, a Holder may surrender all or any portion of its Notes for conversion at any time during the five Business Day period immediately after any five consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this subsection (b)(iSection 14.01(b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Class A Common Stock on each such Trading Day and the Conversion Rate on each such Trading Day. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this subsection (b)(iSection 14.01(b)(i) and the definition of Trading Price set forth in this Indenture. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes unless the Company has requested such determinationdetermination in writing and has provided the Bid Solicitation Agent with the names and contact information of the securities dealers the Company has selected for such purpose, and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes) unless a Holder of at least $1,000,000 aggregate principal amount of Notes requests in writing that the Company make such a determination and provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Class A Common Stock on such Trading Day and the Conversion Rate on such Trading DayRate, at which time the Company shall instruct three nationally recognized securities dealers to deliver bids and instruct the Bid Solicitation Agent in writing (if other than the Company) to determine, or if the Company is acting as Bid Solicitation Agent, the Company shall determine, determine the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Bid Solicitation Agent, or if the Company is acting as Bid Solicitation Agent, the Company, determines that the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Class A Common Stock and the Conversion RateRate and the Company shall instruct the securities dealers that it has selected to provide bids to the Bid Solicitation Agent. At such time as the Company directs the Bid Solicitation Agent in writing to solicit bid quotations, the Company shall provide the Bid Solicitation Agent with the names and contact details of the three independent nationally recognized securities dealers selected by the Company, and the Company shall direct those security dealers to provide bids to the Bid Solicitation Agent. Any such determination will be conclusive absent manifest error. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not not, when the Company is required to, instruct the Bid Solicitation Agent to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentenceobtain bids, or if the Company so instructs the Bid Solicitation Agent to obtain bids and the Bid Solicitation Agent fails to make such determination, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, determination. then, in either case, the Trading Price per $1,000 principal amount of Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Class A Common Stock and the Conversion Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company shall so notify in writing the Holders, the Trustee and the Conversion Agent (if other than the Trustee)) in writing. If, at any time after the Trading Price condition set forth above has been met, the Bid Solicitation Agent, or if the Company is acting as Bid Solicitation Agent, the Company, determines that the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Class A Common Stock and the Conversion Rate for such date, the Company shall so notify in writing the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee).
(i) If, prior to the close of business on the Business Day immediately preceding August 15, 2029, the Company elects to:
(A) issue to all or substantially all holders of the Common Stock any rights, options or warrants (other than in connection with a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock) entitling them, for a period of not more than 45 calendar days after the announcement date of such issuance, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance; or
(B) distribute to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase securities of the Company (other than pursuant to a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock), which distribution has a per share value, as reasonably determined by the Board of Directors, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution, then, in either case, the Company shall notify in writing all Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) at least 30 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan, no later than the Business Day after the Company becomes aware that such separation has occurred or will occur); provided, however, that if the Company elects Physical Settlement (to the extent that the Company has not elected another Settlement Method to apply, including pursuant to Section 14.02) in the applicable notice in respect of any conversions that occurs from, and including, the date the Company provides such notice to, and including, the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or issuance (or, if earlier, the date the Company announces that such issuance or distribution will not take place) (the “Distribution Trigger Irrevocable Physical Settlement Period”), the Company shall be permitted to provide no less than 10 Scheduled Trading Days’ notice prior to the Ex-Dividend Date for the applicable issuance or distribution, in which case the Company shall be required to settle all conversions of Notes with a Conversion Date occurring during the Distribution Trigger Irrevocable Physical Settlement Period by Physical Settlement, and the Company shall describe the same in such notice. Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at any time until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take place, in each case, even if the Notes are not otherwise convertible at such time. Notwithstanding the foregoing, Holders may not convert their Notes under this Section 14.01(b)(ii) if they participate (other than in the case of a share split or share combination) at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described under this Section 14.01(b)(ii)(A) or (B) without having to convert their Notes as if they held a number of shares of Common Stock equal to the then-effective Conversion Rate multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. Neither the Trustee not the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether an issuance or distribution described in this clause (ii) has occurred.
(ii) If a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section 15.02, or if the Company is a party to a Share Exchange Event (other than a Share Exchange Event that is solely for the purpose of changing the Company’s jurisdiction of organization that does not constitute a Fundamental Change or Make-Whole Fundamental Change) that occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, in each case, pursuant to which the Common Stock would be converted into cash, securities or other assets, all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the effective date of the transaction until the earlier of (x) 35 Trading Days after the effective date of such transaction or, if such transaction also constitutes a Fundamental Change, until the close of business on the Business Day immediately preceding the related Fundamental Change Repurchase Date and (y) the second Scheduled Trading Day immediately preceding the Maturity Date. The Company shall notify in writing Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the effective date of such transaction. Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether a Fundamental Change or a Make-Whole Fundamental Change has occurred.
(iii) Prior to the close of business on the Business Day immediately preceding August 15, 2029, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar quarter commencing after the calendar quarter ending on March 31, 2025 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day. The Company shall determine at the beginning of each calendar quarter commencing after March 31, 2025 whether the Notes may be surrendered for conversion in accordance with this clause (iv) and shall provide written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) if in writing and thereafter neither the Notes become convertible in accordance with this clause (iv). Neither the Trustee Company nor the Conversion Bid Solicitation Agent shall have any duty to determine or verify (if other than the Company’s determination of whether the condition set forth ) shall be required to solicit bids again until a new Holder request is made as provided in this clause (iv) has been metSection 14.01(b)(i).
(iv) If the Company calls any or all of the Notes for redemption pursuant to Article 16 prior to the close of business on the Business Day immediately preceding August 15, 2029, then a Holder may surrender all or any part of such of its Notes as called for redemption for conversion at any time prior to the close of business on the second Scheduled Trading Day prior to the Redemption Date, even if the Notes are not otherwise convertible at such time. After that time, the right to convert such Notes pursuant to this Section 14.01(b)(v) shall expire, unless the Company defaults in the payment of the Redemption Price, in which case a Holder of Notes may convert its Notes until the Redemption Price has been paid or duly provided for.
Appears in 1 contract
Sources: Indenture (Alteryx, Inc.)
Conversion Privilege. (a) Subject to and upon compliance with the provisions of this Article 14, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is a minimum of $1,000 principal amount or an integral multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the Business Day immediately preceding August 15July 1, 2029 2020 under the circumstances and during the periods set forth in Section 14.01(b), and (ii) regardless of the conditions described in Section 14.01(b), on or after August 15July 1, 2029 2020 and prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 62.3539 25.1625 shares of Common Stock (subject to adjustment as provided in this Article 14, the “Conversion Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.02, the “Conversion Obligation”).
(ab) (i) Prior to the close of business on the Business Day immediately preceding August 15July 1, 20292020, a Holder may surrender all or any portion of its Notes for conversion at any time during the five Business Day period immediately after any five ten consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this subsection (b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on each such Trading Day and the Conversion Rate on each such Trading Day. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this subsection (b)(i) and the definition of Trading Price set forth in this Indenture. The At such time as the Company shall provide written notice to directs the Bid Solicitation Agent (if other than in writing to solicit bid quotations, the Company) Company shall provide the Bid Solicitation Agent with the names and contact details of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for eachand the Company shall direct those securities dealers to provide bids to the Bid Solicitation Agent. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes unless the Company has requested such determination, and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes) unless a Holder or Holders of at least $1,000,000 2,000,000 aggregate principal amount of Notes requests in writing that the Company make such a determination and provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the Conversion Rate on such Trading Day, at which time the Company shall instruct three nationally recognized securities dealers to deliver bids and instruct the Bid Solicitation Agent (if other than the Company) to determine, or if the Company is acting as Bid Solicitation Agent, the Company shall determine, determine the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not instruct the Bid Solicitation Agent to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentence, or if the Company instructs the Bid Solicitation Agent to obtain bids and the Bid Solicitation Agent fails to make such determination, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, then, in either case, the Trading Price per $1,000 principal amount of Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, so long as reasonable evidence has been provided as set forth above, the Company shall so notify in writing the Holders, the Trustee and the Conversion Agent (if other than the Trustee). If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate for such date, the Company shall so notify in writing the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee).
(i) If, prior to the close of business on the Business Day immediately preceding August 15, 2029, the Company elects to:
(A) issue to all or substantially all holders of the Common Stock any rights, options or warrants (other than in connection with a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock) entitling them, for a period of not more than 45 calendar days after the announcement date of such issuance, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance; or
(B) distribute to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase securities of the Company (other than pursuant to a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock), which distribution has a per share value, as reasonably determined by the Board of Directors, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution, then, in either case, the Company shall notify in writing all Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) at least 30 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan, no later than the Business Day after the Company becomes aware that such separation has occurred or will occur); provided, however, that if the Company elects Physical Settlement (to the extent that the Company has not elected another Settlement Method to apply, including pursuant to Section 14.02) in the applicable notice in respect of any conversions that occurs from, and including, the date the Company provides such notice to, and including, the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or issuance (or, if earlier, the date the Company announces that such issuance or distribution will not take place) (the “Distribution Trigger Irrevocable Physical Settlement Period”), the Company shall be permitted to provide no less than 10 Scheduled Trading Days’ notice prior to the Ex-Dividend Date for the applicable issuance or distribution, in which case the Company shall be required to settle all conversions of Notes with a Conversion Date occurring during the Distribution Trigger Irrevocable Physical Settlement Period by Physical Settlement, and the Company shall describe the same in such notice. Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at any time until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take place, in each case, even if the Notes are not otherwise convertible at such time. Notwithstanding the foregoing, Holders may not convert their Notes under this Section 14.01(b)(ii) if they participate (other than in the case of a share split or share combination) at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described under this Section 14.01(b)(ii)(A) or (B) without having to convert their Notes as if they held a number of shares of Common Stock equal to the then-effective Conversion Rate multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. Neither the Trustee not the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether an issuance or distribution described in this clause (ii) has occurred.
(ii) If a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section 15.02, or if the Company is a party to a Share Exchange Event (other than a Share Exchange Event that is solely for the purpose of changing the Company’s jurisdiction of organization that does not constitute a Fundamental Change or Make-Whole Fundamental Change) that occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, in each case, pursuant to which the Common Stock would be converted into cash, securities or other assets, all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the effective date of the transaction until the earlier of (x) 35 Trading Days after the effective date of such transaction or, if such transaction also constitutes a Fundamental Change, until the close of business on the Business Day immediately preceding the related Fundamental Change Repurchase Date and (y) the second Scheduled Trading Day immediately preceding the Maturity Date. The Company shall notify in writing Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the effective date of such transaction. Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether a Fundamental Change or a Make-Whole Fundamental Change has occurred.
(iii) Prior to the close of business on the Business Day immediately preceding August 15, 2029, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar quarter commencing after the calendar quarter ending on March 31, 2025 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day. The Company shall determine at the beginning of each calendar quarter commencing after March 31, 2025 whether the Notes may be surrendered for conversion in accordance with this clause (iv) and shall provide written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) if the Notes become convertible in accordance with this clause (iv). Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether the condition set forth in this clause (iv) has been met.
(iv) If the Company calls any or all of the Notes for redemption pursuant to Article 16 prior to the close of business on the Business Day immediately preceding August 15, 2029, then a Holder may surrender all or any part of such of its Notes as called for redemption for conversion at any time prior to the close of business on the second Scheduled Trading Day prior to the Redemption Date, even if the Notes are not otherwise convertible at such time. After that time, the right to convert such Notes pursuant to this Section 14.01(b)(v) shall expire, unless the Company defaults in the payment of the Redemption Price, in which case a Holder of Notes may convert its Notes until the Redemption Price has been paid or duly provided for.
Appears in 1 contract
Sources: Indenture (Vitamin Shoppe, Inc.)
Conversion Privilege. (a) Subject to and upon compliance with the provisions of this Article 14, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is a minimum of $1,000 principal amount or an integral multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the Business Day immediately preceding August June 15, 2029 2026 under the circumstances and during the periods set forth in Section 14.01(b), and (ii) regardless of the conditions described in Section 14.01(b), on or after August June 15, 2029 2026 and prior to the close of business on the second Scheduled Trading Business Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 62.3539 116.7134 shares of Common Stock (subject to adjustment as provided in this Article 14, the “Conversion Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.02, the “Conversion Obligation”).
(ab) (i) Prior to the close of business on the Business Day immediately preceding August June 15, 20292026, a Holder may surrender all or any portion of its Notes for conversion at any time during the five Business Day period immediately after any five consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this subsection (b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on each such Trading Day and the Conversion Rate on each such Trading Day. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this subsection (b)(i) and the definition of Trading Price set forth in this Indenture. The At such time as the Company shall provide written notice to directs the Bid Solicitation Agent (if other than in writing to solicit bid quotations, the Company) Company shall provide the Bid Solicitation Agent with the names and contact details of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for eachand the Company shall direct those securities dealers to provide bids to the Bid Solicitation Agent. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes unless the Company has requested such determination, and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000 principal amount of NotesPrice) unless a Holder of at least $1,000,000 aggregate principal amount of Notes requests in writing that the Company make such a determination and provides the Company with written notice that includes reasonable evidence that the Trading Price per $1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the Conversion Rate on such Trading Day, at which time the Company shall instruct three nationally recognized securities dealers to deliver bids and instruct the Bid Solicitation Agent (if other than the Company) to determine, or if the Company is acting as Bid Solicitation Agent, the Company shall determine, the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not not, when it is required to, instruct the Bid Solicitation Agent to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentenceobtain bids, or if the Company instructs gives such instruction to the Bid Solicitation Agent to obtain bids Agent, and the Bid Solicitation Agent fails to make such determination, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentencedetermination, then, in either each case, the Trading Price per $1,000 principal amount of Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company shall so notify in writing the Holders, the Trustee and the Conversion Agent (if other than the Trustee). If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate for such date, the Company shall so notify in writing the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee).
(i) If, prior to the close of business on the Business Day immediately preceding August 15, 2029, the Company elects to:
(A) issue to all or substantially all holders of the Common Stock any rights, options or warrants (other than in connection with a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock) entitling them, for a period of not more than 45 calendar days after the announcement date of such issuance, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance; or
(B) distribute to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase securities of the Company (other than pursuant to a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock), which distribution has a per share value, as reasonably determined by the Board of Directors, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution, then, in either case, the Company shall notify in writing all Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) at least 30 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan, no later than the Business Day after the Company becomes aware that such separation has occurred or will occur); provided, however, that if the Company elects Physical Settlement (to the extent that the Company has not elected another Settlement Method to apply, including pursuant to Section 14.02) in the applicable notice in respect of any conversions that occurs from, and including, the date the Company provides such notice to, and including, the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or issuance (or, if earlier, the date the Company announces that such issuance or distribution will not take place) (the “Distribution Trigger Irrevocable Physical Settlement Period”), the Company shall be permitted to provide no less than 10 Scheduled Trading Days’ notice prior to the Ex-Dividend Date for the applicable issuance or distribution, in which case the Company shall be required to settle all conversions of Notes with a Conversion Date occurring during the Distribution Trigger Irrevocable Physical Settlement Period by Physical Settlement, and the Company shall describe the same in such notice. Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at any time until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take place, in each case, even if the Notes are not otherwise convertible at such time. Notwithstanding the foregoing, Holders may not convert their Notes under this Section 14.01(b)(ii) if they participate (other than in the case of a share split or share combination) at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described under this Section 14.01(b)(ii)(A) or (B) without having to convert their Notes as if they held a number of shares of Common Stock equal to the then-effective Conversion Rate multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. Neither the Trustee not the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether an issuance or distribution described in this clause (ii) has occurred.
(ii) If a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section 15.02, or if the Company is a party to a Share Exchange Event (other than a Share Exchange Event that is solely for the purpose of changing the Company’s jurisdiction of organization that does not constitute a Fundamental Change or Make-Whole Fundamental Change) that occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, in each case, pursuant to which the Common Stock would be converted into cash, securities or other assets, all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the effective date of the transaction until the earlier of (x) 35 Trading Days after the effective date of such transaction or, if such transaction also constitutes a Fundamental Change, until the close of business on the Business Day immediately preceding the related Fundamental Change Repurchase Date and (y) the second Scheduled Trading Day immediately preceding the Maturity Date. The Company initially shall notify in writing Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the effective date of such transaction. Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether a Fundamental Change or a Make-Whole Fundamental Change has occurredact as Bid Solicitation Agent.
(iii) Prior to the close of business on the Business Day immediately preceding August 15, 2029, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar quarter commencing after the calendar quarter ending on March 31, 2025 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day. The Company shall determine at the beginning of each calendar quarter commencing after March 31, 2025 whether the Notes may be surrendered for conversion in accordance with this clause (iv) and shall provide written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) if the Notes become convertible in accordance with this clause (iv). Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether the condition set forth in this clause (iv) has been met.
(iv) If the Company calls any or all of the Notes for redemption pursuant to Article 16 prior to the close of business on the Business Day immediately preceding August 15, 2029, then a Holder may surrender all or any part of such of its Notes as called for redemption for conversion at any time prior to the close of business on the second Scheduled Trading Day prior to the Redemption Date, even if the Notes are not otherwise convertible at such time. After that time, the right to convert such Notes pursuant to this Section 14.01(b)(v) shall expire, unless the Company defaults in the payment of the Redemption Price, in which case a Holder of Notes may convert its Notes until the Redemption Price has been paid or duly provided for.
Appears in 1 contract
Sources: Indenture (Chesapeake Energy Corp)
Conversion Privilege. (a) Subject to and upon compliance with the provisions of this Article 14, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the Business Day immediately preceding August 15April 1, 2029 2023, under the circumstances and during the periods set forth in Section 14.01(b), and (ii) regardless of the conditions described in Section 14.01(b), on or after August 15April 1, 2029 2023 and prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 62.3539 23.6323 shares of Common Stock (subject to adjustment as provided in this Article 14, the “Conversion Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.02, the “Conversion Obligation”).
(ab) (i) Prior to the close of business on the Business Day immediately preceding August 15April 1, 20292023, a Holder may surrender all or any portion of its Notes for conversion at any time during the five Business Day period immediately after any five ten consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a written request by a Holder of Notes in accordance with this subsection (b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on each such Trading Day and the Conversion Rate on each such Trading Day. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this subsection (b)(i) and the definition of Trading Price set forth in this Indenture. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes unless the Company has requested such determination, and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes) unless a Holder of at least $1,000,000 aggregate principal amount of Notes requests in writing that the Company make such a determination and provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the Conversion Rate on such Trading Day, at which time the Company shall instruct three nationally recognized securities dealers to deliver bids and instruct the Bid Solicitation Agent (if other than the Company) to determine, or if the Company is acting as Bid Solicitation Agent, the Company shall determine, the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not not, when the Company is required to, instruct the Bid Solicitation Agent to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentence, or if the Company instructs the Bid Solicitation Agent to obtain bids and the Bid Solicitation Agent fails to make such determination, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, then, in either case, the Trading Price per $1,000 principal amount of Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company shall so notify in writing the Holders, the Trustee and the Conversion Agent (if other than the Trustee)) in writing. If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate for such date, the Company shall so notify in writing the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee).
(i) Ifin writing, prior to the close of business on the Business Day immediately preceding August 15, 2029, and thereafter neither the Company elects to:
(A) issue to all or substantially all holders of nor the Common Stock any rights, options or warrants (other than in connection with a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock) entitling them, for a period of not more than 45 calendar days after the announcement date of such issuance, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance; or
(B) distribute to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase securities of the Company (other than pursuant to a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock), which distribution has a per share value, as reasonably determined by the Board of Directors, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution, then, in either case, the Company shall notify in writing all Holders of the Notes, the Trustee and the Conversion Bid Solicitation Agent (if other than the TrusteeCompany) at least 30 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan, no later than the Business Day after the Company becomes aware that such separation has occurred or will occur); provided, however, that if the Company elects Physical Settlement (to the extent that the Company has not elected another Settlement Method to apply, including pursuant to Section 14.02) in the applicable notice in respect of any conversions that occurs from, and including, the date the Company provides such notice to, and including, the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or issuance (or, if earlier, the date the Company announces that such issuance or distribution will not take place) (the “Distribution Trigger Irrevocable Physical Settlement Period”), the Company shall be permitted to provide no less than 10 Scheduled Trading Days’ notice prior to the Ex-Dividend Date for the applicable issuance or distribution, in which case the Company shall be required to settle all conversions of Notes with solicit bids again until a Conversion Date occurring during the Distribution Trigger Irrevocable Physical Settlement Period by Physical Settlement, and the Company shall describe the same in such notice. Once the Company has given such notice, a new Holder may surrender all or any portion of its Notes for conversion at any time until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take place, in each case, even if the Notes are not otherwise convertible at such time. Notwithstanding the foregoing, Holders may not convert their Notes under this Section 14.01(b)(ii) if they participate (other than in the case of a share split or share combination) at the same time and upon the same terms request is made as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described under this Section 14.01(b)(ii)(A) or (B) without having to convert their Notes as if they held a number of shares of Common Stock equal to the then-effective Conversion Rate multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. Neither the Trustee not the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether an issuance or distribution described in this clause (ii) has occurredprovided above.
(ii) If a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section 15.02, or if the Company is a party to a Share Exchange Event (other than a Share Exchange Event that is solely for the purpose of changing the Company’s jurisdiction of organization that does not constitute a Fundamental Change or Make-Whole Fundamental Change) that occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, in each case, pursuant to which the Common Stock would be converted into cash, securities or other assets, all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the effective date of the transaction until the earlier of (x) 35 Trading Days after the effective date of such transaction or, if such transaction also constitutes a Fundamental Change, until the close of business on the Business Day immediately preceding the related Fundamental Change Repurchase Date and (y) the second Scheduled Trading Day immediately preceding the Maturity Date. The Company shall notify in writing Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the effective date of such transaction. Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether a Fundamental Change or a Make-Whole Fundamental Change has occurred.
(iii) Prior to the close of business on the Business Day immediately preceding August 15, 2029, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar quarter commencing after the calendar quarter ending on March 31, 2025 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day. The Company shall determine at the beginning of each calendar quarter commencing after March 31, 2025 whether the Notes may be surrendered for conversion in accordance with this clause (iv) and shall provide written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) if the Notes become convertible in accordance with this clause (iv). Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether the condition set forth in this clause (iv) has been met.
(iv) If the Company calls any or all of the Notes for redemption pursuant to Article 16 prior to the close of business on the Business Day immediately preceding August 15, 2029, then a Holder may surrender all or any part of such of its Notes as called for redemption for conversion at any time prior to the close of business on the second Scheduled Trading Day prior to the Redemption Date, even if the Notes are not otherwise convertible at such time. After that time, the right to convert such Notes pursuant to this Section 14.01(b)(v) shall expire, unless the Company defaults in the payment of the Redemption Price, in which case a Holder of Notes may convert its Notes until the Redemption Price has been paid or duly provided for.
Appears in 1 contract
Sources: Indenture (Boingo Wireless Inc)
Conversion Privilege. (a) Subject to and upon compliance with the provisions of this Article 14, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the Business Day immediately preceding August 15January 1, 2029 2026 under the circumstances and during the periods set forth in Section 14.01(b), and (ii) regardless of the conditions described in Section 14.01(b), on or after August 15January 1, 2029 2026 and prior to the close of business on the second Scheduled Trading Business Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 62.3539 22.5861 shares of Common Stock (subject to adjustment as provided in this Article 14, the “Conversion Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.02, the “Conversion Obligation”).
(ab) (i) Prior to the close of business on the Business Day immediately preceding August 15January 1, 20292026, a Holder may surrender all or any portion of its Notes for conversion at any time during the five Business Day period immediately after any five consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this subsection (b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on each such Trading Day and the Conversion Rate on each such Trading Day. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this subsection (b)(i) and the definition of Trading Price set forth in this Indenture. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes unless the Company has requested such determination, and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes) unless a Holder of at least $1,000,000 aggregate principal amount of Notes requests in writing that the Company make such a determination and provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the Conversion Rate on such Trading Day, at which time the Company shall instruct three nationally recognized securities dealers to deliver bids and instruct the Bid Solicitation Agent (if other than the Company) to determine, or if the Company is acting as Bid Solicitation Agent, the Company shall determine, the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not instruct the Bid Solicitation Agent to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentence, or if the Company instructs the Bid Solicitation Agent to obtain bids and the Bid Solicitation Agent fails to make such determination, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, then, in either case, the Trading Price per $1,000 principal amount of Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company shall so notify in writing the Holders, the Trustee and the Conversion Agent (if other than the Trustee). If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate for such date, the Company shall so notify in writing the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee).
(i) If, prior to the close of business on the Business Day immediately preceding August 15, 2029, the Company elects to:
(A) issue to all or substantially all holders of the Common Stock any rights, options or warrants (other than in connection with a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock) entitling them, for a period of not more than 45 calendar days after the announcement date of such issuance, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance; or
(B) distribute to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase securities of the Company (other than pursuant to a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock), which distribution has a per share value, as reasonably determined by the Board of Directors, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution, then, in either case, the Company shall notify in writing all Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) at least 30 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan, no later than the Business Day after the Company becomes aware that such separation has occurred or will occur); provided, however, that if the Company elects Physical Settlement (to the extent that the Company has not elected another Settlement Method to apply, including pursuant to Section 14.02) in the applicable notice in respect of any conversions that occurs from, and including, the date the Company provides such notice to, and including, the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or issuance (or, if earlier, the date the Company announces that such issuance or distribution will not take place) (the “Distribution Trigger Irrevocable Physical Settlement Period”), the Company shall be permitted to provide no less than 10 Scheduled Trading Days’ notice prior to the Ex-Dividend Date for the applicable issuance or distribution, in which case the Company shall be required to settle all conversions of Notes with a Conversion Date occurring during the Distribution Trigger Irrevocable Physical Settlement Period by Physical Settlement, and the Company shall describe the same in such notice. Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at any time until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take place, in each case, even if the Notes are not otherwise convertible at such time. Notwithstanding the foregoing, Holders may not convert their Notes under this Section 14.01(b)(ii) if they participate (other than in the case of a share split or share combination) at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described under this Section 14.01(b)(ii)(A) or (B) without having to convert their Notes as if they held a number of shares of Common Stock equal to the then-effective Conversion Rate multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. Neither the Trustee not the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether an issuance or distribution described in this clause (ii) has occurred.
(ii) If a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section 15.02, or if the Company is a party to a Share Exchange Event (other than a Share Exchange Event that is solely for the purpose of changing the Company’s jurisdiction of organization that does not constitute a Fundamental Change or Make-Whole Fundamental Change) that occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, in each case, pursuant to which the Common Stock would be converted into cash, securities or other assets, all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the effective date of the transaction until the earlier of (x) 35 Trading Days after the effective date of such transaction or, if such transaction also constitutes a Fundamental Change, until the close of business on the Business Day immediately preceding the related Fundamental Change Repurchase Date and (y) the second Scheduled Trading Day immediately preceding the Maturity Date. The Company shall notify in writing Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the effective date of such transaction. Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether a Fundamental Change or a Make-Whole Fundamental Change has occurred.
(iii) Prior to the close of business on the Business Day immediately preceding August 15, 2029, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar quarter commencing after the calendar quarter ending on March 31, 2025 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day. The Company shall determine at the beginning of each calendar quarter commencing after March 31, 2025 whether the Notes may be surrendered for conversion in accordance with this clause (iv) and shall provide written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) if the Notes become convertible in accordance with this clause (iv). Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether the condition set forth in this clause (iv) has been met.
(iv) If the Company calls any or all of the Notes for redemption pursuant to Article 16 prior to the close of business on the Business Day immediately preceding August 15, 2029, then a Holder may surrender all or any part of such of its Notes as called for redemption for conversion at any time prior to the close of business on the second Scheduled Trading Day prior to the Redemption Date, even if the Notes are not otherwise convertible at such time. After that time, the right to convert such Notes pursuant to this Section 14.01(b)(v) shall expire, unless the Company defaults in the payment of the Redemption Price, in which case a Holder of Notes may convert its Notes until the Redemption Price has been paid or duly provided for.
Appears in 1 contract
Sources: Indenture (MP Materials Corp. / DE)
Conversion Privilege. (a) Subject to and upon compliance with the provisions of this Article 14, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the Business Day immediately preceding August 15March 1, 2029 2035, and other than during the period from, and including, March 1, 2020 to the close of business on the second Scheduled Trading Day immediately preceding June 1, 2020 under the circumstances and during the periods set forth in Section 14.01(b), and (ii) regardless of the conditions described in Section 14.01(b), at any time during the period from, and including, March 1, 2020 to the close of business on the second Scheduled Trading Day immediately preceding June 1, 2020, and on or after August 15March 1, 2029 2035 and prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 62.3539 16.4572 shares of Common Stock (subject to adjustment as provided in this Article 14, the “Conversion Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.02, the “Conversion Obligation”).
(ab) (i) Prior to the close of business on the Business Day immediately preceding August 15March 1, 20292035, a Holder may surrender all or any portion of its Notes for conversion at any time during the five Business Day period immediately after any five consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this subsection (b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on each such Trading Day and the Conversion Rate on each such Trading Day. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this subsection (b)(iSection 14.01(b)(i) and the definition of Trading Price set forth in this Indenture. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each, and shall direct such securities dealers to provide the required information to the Bid Solicitation Agent. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes unless the Company has requested such determination, and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes) unless a Holder of at least $1,000,000 aggregate principal amount of Notes requests in writing that the Company make such a determination and provides the Company with reasonable evidence in writing that the Trading Price per $1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the Conversion Rate on such Trading DayRate, at which time the Company shall instruct three nationally recognized securities dealers to deliver bids and instruct the Bid Solicitation Agent (if other than the Company) to determine, or if the Company is acting as Bid Solicitation Agent, the Company shall determine, determine the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not instruct the Bid Solicitation Agent to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentence, or if the Company instructs the Bid Solicitation Agent to obtain bids and the Bid Solicitation Agent fails to make such determination, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, then, in either case, the Trading Price per $1,000 principal amount of Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company shall so notify in writing the Holders, the Trustee and the Conversion Agent (if other than the Trustee)) in writing. If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate for such date, the Company shall so notify in writing the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee).
(i) If, prior to the close of business on the Business Day immediately preceding August 15, 2029, the Company elects to:
(A) issue to all or substantially all holders of the Common Stock any rights, options or warrants (other than in connection with a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock) entitling them, for a period of not more than 45 calendar days after the announcement date of such issuance, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance; or
(B) distribute to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase securities of the Company (other than pursuant to a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock), which distribution has a per share value, as reasonably determined by the Board of Directors, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution, then, in either case, the Company shall notify in writing all Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) at least 30 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan, no later than the Business Day after the Company becomes aware that such separation has occurred or will occur); provided, however, that if the Company elects Physical Settlement (to the extent that the Company has not elected another Settlement Method to apply, including pursuant to Section 14.02) in the applicable notice in respect of any conversions that occurs from, and including, the date the Company provides such notice to, and including, the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or issuance (or, if earlier, the date the Company announces that such issuance or distribution will not take place) (the “Distribution Trigger Irrevocable Physical Settlement Period”), the Company shall be permitted to provide no less than 10 Scheduled Trading Days’ notice prior to the Ex-Dividend Date for the applicable issuance or distribution, in which case the Company shall be required to settle all conversions of Notes with a Conversion Date occurring during the Distribution Trigger Irrevocable Physical Settlement Period by Physical Settlement, and the Company shall describe the same in such notice. Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at any time until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take place, in each case, even if the Notes are not otherwise convertible at such time. Notwithstanding the foregoing, Holders may not convert their Notes under this Section 14.01(b)(ii) if they participate (other than in the case of a share split or share combination) at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described under this Section 14.01(b)(ii)(A) or (B) without having to convert their Notes as if they held a number of shares of Common Stock equal to the then-effective Conversion Rate multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. Neither the Trustee not the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether an issuance or distribution described in this clause (ii) has occurredwriting.
(ii) If a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section 15.02, or if the Company is a party to a Share Exchange Event (other than a Share Exchange Event that is solely for the purpose of changing the Company’s jurisdiction of organization that does not constitute a Fundamental Change or Make-Whole Fundamental Change) that occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, in each case, pursuant to which the Common Stock would be converted into cash, securities or other assets, all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the effective date of the transaction until the earlier of (x) 35 Trading Days after the effective date of such transaction or, if such transaction also constitutes a Fundamental Change, until the close of business on the Business Day immediately preceding the related Fundamental Change Repurchase Date and (y) the second Scheduled Trading Day immediately preceding the Maturity Date. The Company shall notify in writing Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the effective date of such transaction. Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether a Fundamental Change or a Make-Whole Fundamental Change has occurred.
(iii) Prior to the close of business on the Business Day immediately preceding August 15, 2029, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar quarter commencing after the calendar quarter ending on March 31, 2025 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day. The Company shall determine at the beginning of each calendar quarter commencing after March 31, 2025 whether the Notes may be surrendered for conversion in accordance with this clause (iv) and shall provide written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) if the Notes become convertible in accordance with this clause (iv). Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether the condition set forth in this clause (iv) has been met.
(iv) If the Company calls any or all of the Notes for redemption pursuant to Article 16 prior to the close of business on the Business Day immediately preceding August 15, 2029, then a Holder may surrender all or any part of such of its Notes as called for redemption for conversion at any time prior to the close of business on the second Scheduled Trading Day prior to the Redemption Date, even if the Notes are not otherwise convertible at such time. After that time, the right to convert such Notes pursuant to this Section 14.01(b)(v) shall expire, unless the Company defaults in the payment of the Redemption Price, in which case a Holder of Notes may convert its Notes until the Redemption Price has been paid or duly provided for.
Appears in 1 contract
Sources: Indenture (FireEye, Inc.)
Conversion Privilege. (a) Subject to and upon compliance with the provisions of this Article 14, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the Business Day immediately preceding August February 15, 2029 2025 under the circumstances and during the periods set forth in Section 14.01(b), and (ii) regardless of the conditions described in Section 14.01(b), on or after August February 15, 2029 2025 and prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 62.3539 13.5739 shares of Common Stock (subject to adjustment as provided in this Article 14, the “Conversion Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.02, the “Conversion Obligation”).
(ab) (i) Prior to the close of business on the Business Day immediately preceding August February 15, 20292025, a Holder may surrender all or any portion of its Notes for conversion at any time during the five Business Day period immediately after any five ten consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this subsection (b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on each such Trading Day and the Conversion Rate on each such Trading Day. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this subsection (b)(i) and the definition of Trading Price set forth in this Indenture. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes unless the Company has requested such determinationdetermination in writing, and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes) unless a Holder of at least $1,000,000 5,000,0000 aggregate principal amount of Notes requests in writing that the Company make such a determination and provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the Conversion Rate on such Trading Day, at which time the Company shall instruct three nationally recognized securities dealers to deliver bids and instruct the Bid Solicitation Agent (if other than the Company) to determine, or if the Company is acting as Bid Solicitation Agent, the Company shall determine, the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not instruct the Bid Solicitation Agent in writing to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentence, or if the Company instructs the Bid Solicitation Agent in writing to obtain bids and the Bid Solicitation Agent fails to make such determination, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, then, in either case, the Trading Price per $1,000 principal amount of Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company shall so notify in writing the Holders, the Trustee and the Conversion Agent (if other than the Trustee)) in writing. If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate for such date, the Company shall so notify in writing the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee).
(i) If, prior to the close of business on the Business Day immediately preceding August 15, 2029, the Company elects to:
(A) issue to all or substantially all holders of the Common Stock any rights, options or warrants (other than in connection with a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock) entitling them, for a period of not more than 45 calendar days after the announcement date of such issuance, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance; or
(B) distribute to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase securities of the Company (other than pursuant to a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock), which distribution has a per share value, as reasonably determined by the Board of Directors, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution, then, in either case, the Company shall notify in writing all Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) at least 30 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan, no later than the Business Day after the Company becomes aware that such separation has occurred or will occur); provided, however, that if the Company elects Physical Settlement (to the extent that the Company has not elected another Settlement Method to apply, including pursuant to Section 14.02) in the applicable notice in respect of any conversions that occurs from, and including, the date the Company provides such notice to, and including, the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or issuance (or, if earlier, the date the Company announces that such issuance or distribution will not take place) (the “Distribution Trigger Irrevocable Physical Settlement Period”), the Company shall be permitted to provide no less than 10 Scheduled Trading Days’ notice prior to the Ex-Dividend Date for the applicable issuance or distribution, in which case the Company shall be required to settle all conversions of Notes with a Conversion Date occurring during the Distribution Trigger Irrevocable Physical Settlement Period by Physical Settlement, and the Company shall describe the same in such notice. Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at any time until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take place, in each case, even if the Notes are not otherwise convertible at such time. Notwithstanding the foregoing, Holders may not convert their Notes under this Section 14.01(b)(ii) if they participate (other than in the case of a share split or share combination) at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described under this Section 14.01(b)(ii)(A) or (B) without having to convert their Notes as if they held a number of shares of Common Stock equal to the then-effective Conversion Rate multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. Neither the Trustee not the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether an issuance or distribution described in this clause (ii) has occurredwriting.
(ii) If a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section 15.02, or if the Company is a party to a Share Exchange Event (other than a Share Exchange Event that is solely for the purpose of changing the Company’s jurisdiction of organization that does not constitute a Fundamental Change or Make-Whole Fundamental Change) that occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, in each case, pursuant to which the Common Stock would be converted into cash, securities or other assets, all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the effective date of the transaction until the earlier of (x) 35 Trading Days after the effective date of such transaction or, if such transaction also constitutes a Fundamental Change, until the close of business on the Business Day immediately preceding the related Fundamental Change Repurchase Date and (y) the second Scheduled Trading Day immediately preceding the Maturity Date. The Company shall notify in writing Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the effective date of such transaction. Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether a Fundamental Change or a Make-Whole Fundamental Change has occurred.
(iii) Prior to the close of business on the Business Day immediately preceding August 15, 2029, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar quarter commencing after the calendar quarter ending on March 31, 2025 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day. The Company shall determine at the beginning of each calendar quarter commencing after March 31, 2025 whether the Notes may be surrendered for conversion in accordance with this clause (iv) and shall provide written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) if the Notes become convertible in accordance with this clause (iv). Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether the condition set forth in this clause (iv) has been met.
(iv) If the Company calls any or all of the Notes for redemption pursuant to Article 16 prior to the close of business on the Business Day immediately preceding August 15, 2029, then a Holder may surrender all or any part of such of its Notes as called for redemption for conversion at any time prior to the close of business on the second Scheduled Trading Day prior to the Redemption Date, even if the Notes are not otherwise convertible at such time. After that time, the right to convert such Notes pursuant to this Section 14.01(b)(v) shall expire, unless the Company defaults in the payment of the Redemption Price, in which case a Holder of Notes may convert its Notes until the Redemption Price has been paid or duly provided for.
Appears in 1 contract
Conversion Privilege. (a) Subject to and upon compliance with the provisions of this Article 14, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the Business Day immediately preceding August 15November 1, 2029 2024 under the circumstances and during the periods set forth in Section 14.01(b), and (ii) regardless of the conditions described in Section 14.01(b), on or after August 15November 1, 2029 2024 and prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 62.3539 16.3875 shares of Common Stock (subject to adjustment as provided in this Article 14, the “Conversion Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.02, the “Conversion Obligation”).
(ab) (i) Prior to the close of business on the Business Day immediately preceding August 15November 1, 20292024, a Holder may surrender all or any portion of its Notes for conversion at any time during the five Business Day period immediately after any five consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this subsection (b)(iSection 14.01(b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on each such Trading Day and the Conversion Rate on each such Trading Day. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this subsection (b)(iSection 14.01(b)(i) and the definition of Trading Price set forth in this Indenture. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes unless the Company has requested such determinationdetermination and has provided the Bid Solicitation Agent with the names and contact information of the securities dealers the Company has selected for such purpose, and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes) unless a Holder of at least $1,000,000 2,000,000 aggregate principal amount of Notes requests in writing that the Company make such a determination and provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the Conversion Rate on such Trading DayRate, at which time the Company shall instruct three nationally recognized securities dealers to deliver bids and instruct the Bid Solicitation Agent (if other than the Company) to determine, or if the Company is acting as Bid Solicitation Agent, the Company shall determine, determine the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate. If the Trading Price condition has been met on any Trading Day, the Company will so notify the Holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing. Any such determination will be conclusive absent manifest error. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not not, when the Company is required to, instruct the Bid Solicitation Agent in writing to determine obtain the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentencethis Section 14.01(b)(i), or if the Company so instructs the Bid Solicitation Agent to obtain bids and the Bid Solicitation Agent fails to make such determination, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, this Section 14.01(b)(i) then, in either case, the Trading Price per $1,000 principal amount of Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company shall so notify in writing the Holders, the Trustee and the Conversion Agent (if other than the Trustee)) in writing. Any such determination shall be conclusive absent manifest error. If, at on any time Trading Day after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate for such date, the Company shall so notify in writing the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee).
(i) If, prior to in writing that the close of business on the Business Day immediately preceding August 15, 2029, Trading Price condition is no longer met and thereafter neither the Company elects to:
(A) issue to all or substantially all holders of nor the Common Stock any rights, options or warrants (other than in connection with a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock) entitling them, for a period of not more than 45 calendar days after the announcement date of such issuance, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance; or
(B) distribute to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase securities of the Company (other than pursuant to a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock), which distribution has a per share value, as reasonably determined by the Board of Directors, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution, then, in either case, the Company shall notify in writing all Holders of the Notes, the Trustee and the Conversion Bid Solicitation Agent (if other than the TrusteeCompany) at least 30 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan, no later than the Business Day after the Company becomes aware that such separation has occurred or will occur); provided, however, that if the Company elects Physical Settlement (to the extent that the Company has not elected another Settlement Method to apply, including pursuant to Section 14.02) in the applicable notice in respect of any conversions that occurs from, and including, the date the Company provides such notice to, and including, the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or issuance (or, if earlier, the date the Company announces that such issuance or distribution will not take place) (the “Distribution Trigger Irrevocable Physical Settlement Period”), the Company shall be permitted to provide no less than 10 Scheduled Trading Days’ notice prior to the Ex-Dividend Date for the applicable issuance or distribution, in which case the Company shall be required to settle all conversions of Notes with a Conversion Date occurring during the Distribution Trigger Irrevocable Physical Settlement Period by Physical Settlement, and the Company shall describe the same in such notice. Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at any time solicit bids again until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take place, in each case, even if the Notes are not otherwise convertible at such time. Notwithstanding the foregoing, Holders may not convert their Notes under this Section 14.01(b)(ii) if they participate (other than in the case of a share split or share combination) at the same time and upon the same terms another qualifying request is made as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described under this Section 14.01(b)(ii)(A) or (B) without having to convert their Notes as if they held a number of shares of Common Stock equal to the then-effective Conversion Rate multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. Neither the Trustee not the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether an issuance or distribution described in this clause (ii) has occurredprovided above.
(ii) If a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section 15.02, or if the Company is a party to a Share Exchange Event (other than a Share Exchange Event that is solely for the purpose of changing the Company’s jurisdiction of organization that does not constitute a Fundamental Change or Make-Whole Fundamental Change) that occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, in each case, pursuant to which the Common Stock would be converted into cash, securities or other assets, all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the effective date of the transaction until the earlier of (x) 35 Trading Days after the effective date of such transaction or, if such transaction also constitutes a Fundamental Change, until the close of business on the Business Day immediately preceding the related Fundamental Change Repurchase Date and (y) the second Scheduled Trading Day immediately preceding the Maturity Date. The Company shall notify in writing Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the effective date of such transaction. Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether a Fundamental Change or a Make-Whole Fundamental Change has occurred.
(iii) Prior to the close of business on the Business Day immediately preceding August 15, 2029, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar quarter commencing after the calendar quarter ending on March 31, 2025 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day. The Company shall determine at the beginning of each calendar quarter commencing after March 31, 2025 whether the Notes may be surrendered for conversion in accordance with this clause (iv) and shall provide written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) if the Notes become convertible in accordance with this clause (iv). Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether the condition set forth in this clause (iv) has been met.
(iv) If the Company calls any or all of the Notes for redemption pursuant to Article 16 prior to the close of business on the Business Day immediately preceding August 15, 2029, then a Holder may surrender all or any part of such of its Notes as called for redemption for conversion at any time prior to the close of business on the second Scheduled Trading Day prior to the Redemption Date, even if the Notes are not otherwise convertible at such time. After that time, the right to convert such Notes pursuant to this Section 14.01(b)(v) shall expire, unless the Company defaults in the payment of the Redemption Price, in which case a Holder of Notes may convert its Notes until the Redemption Price has been paid or duly provided for.
Appears in 1 contract
Sources: Indenture (Rapid7, Inc.)
Conversion Privilege. (a) Subject to and upon compliance with the provisions of this Article Article 14, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral multiple in excess thereof) of such Note (i) subject to satisfaction of the conditions described in Section Section 14.01(b), at any time prior to the close of business on the Business Day immediately preceding August March 15, 2029 2026 under the circumstances and during the periods set forth in Section Section 14.01(b), and (ii) regardless irrespective of the conditions described in Section Section 14.01(b), on or after August March 15, 2029 2026 and prior to the close of business on the second Scheduled Trading Business Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 62.3539 19.0404 shares of Common Stock (subject to adjustment as provided in this Article Article 14, the “Conversion Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, with the settlement provisions of Section Section 14.02, the “Conversion Obligation”).
(ab) (i) Prior to the close of business on the Business Day immediately preceding August March 15, 20292026, a Holder may surrender all or any portion of its Notes for conversion at any time during the five Business Day period immediately after any five consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this subsection (b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on each such Trading Day and the Conversion Rate on each such Trading Day. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this subsection (b)(i) and the definition of Trading Price set forth in this Indenture. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes unless the Company has requested such determination, and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000 principal amount of NotesPrice) unless a Holder of at least $1,000,000 aggregate principal amount of Notes requests in writing that the Company make such a determination and provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the Conversion Rate on for each Trading Day during the Measurement Period. At such Trading Daytime, at which time the Company shall instruct three nationally recognized securities dealers to deliver bids and instruct the Bid Solicitation Agent (if other than the Company) to determine, or if the Company is acting as Bid Solicitation Agent, the Company shall determine, the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes Note is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate. At such time as the Company directs the Bid Solicitation Agent in writing to solicit bid quotations, the Company shall provide the Bid Solicitation Agent with the names and contact details of the three independent nationally recognized securities dealers the Company selects, and the Company shall direct those security dealers to provide bids to the bid solicitation agent. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not instruct the Bid Solicitation Agent to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentence, or if the Company instructs the Bid Solicitation Agent to obtain bids and the Bid Solicitation Agent fails to make such determination, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, then, in either case, the Trading Price per $1,000 principal amount of Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company shall so notify in writing the Holders, the Trustee and the Conversion Agent (if other than the Trustee)) in writing. If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the applicable Conversion Rate for such dateRate, the Company shall so notify in writing the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee).
(i) If, prior to the close of business on the Business Day immediately preceding August 15, 2029, the Company elects to:
(A) issue to all or substantially all holders of the Common Stock any rights, options or warrants (other than in connection with a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock) entitling them, for a period of not more than 45 calendar days after the announcement date of such issuance, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance; or
(B) distribute to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase securities of the Company (other than pursuant to a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock), which distribution has a per share value, as reasonably determined by the Board of Directors, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution, then, in either case, the Company shall notify in writing all Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) at least 30 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan, no later than the Business Day after the Company becomes aware that such separation has occurred or will occur); provided, however, that if the Company elects Physical Settlement (to the extent that the Company has not elected another Settlement Method to apply, including pursuant to Section 14.02) in the applicable notice in respect of any conversions that occurs from, and including, the date the Company provides such notice to, and including, the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or issuance (or, if earlier, the date the Company announces that such issuance or distribution will not take place) (the “Distribution Trigger Irrevocable Physical Settlement Period”), the Company shall be permitted to provide no less than 10 Scheduled Trading Days’ notice prior to the Ex-Dividend Date for the applicable issuance or distribution, in which case the Company shall be required to settle all conversions of Notes with a Conversion Date occurring during the Distribution Trigger Irrevocable Physical Settlement Period by Physical Settlement, and the Company shall describe the same in such notice. Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at any time until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take place, in each case, even if the Notes are not otherwise convertible at such time. Notwithstanding the foregoing, Holders may not convert their Notes under this Section 14.01(b)(ii) if they participate (other than in the case of a share split or share combination) at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described under this Section 14.01(b)(ii)(A) or (B) without having to convert their Notes as if they held a number of shares of Common Stock equal to the then-effective Conversion Rate multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. Neither the Trustee not the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether an issuance or distribution described in this clause (ii) has occurredwriting.
(ii) If a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section 15.02, or if the Company is a party to a Share Exchange Event (other than a Share Exchange Event that is solely for the purpose of changing the Company’s jurisdiction of organization that does not constitute a Fundamental Change or Make-Whole Fundamental Change) that occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, in each case, pursuant to which the Common Stock would be converted into cash, securities or other assets, all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the effective date of the transaction until the earlier of (x) 35 Trading Days after the effective date of such transaction or, if such transaction also constitutes a Fundamental Change, until the close of business on the Business Day immediately preceding the related Fundamental Change Repurchase Date and (y) the second Scheduled Trading Day immediately preceding the Maturity Date. The Company shall notify in writing Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the effective date of such transaction. Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether a Fundamental Change or a Make-Whole Fundamental Change has occurred.
(iii) Prior to the close of business on the Business Day immediately preceding August 15, 2029, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar quarter commencing after the calendar quarter ending on March 31, 2025 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day. The Company shall determine at the beginning of each calendar quarter commencing after March 31, 2025 whether the Notes may be surrendered for conversion in accordance with this clause (iv) and shall provide written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) if the Notes become convertible in accordance with this clause (iv). Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether the condition set forth in this clause (iv) has been met.
(iv) If the Company calls any or all of the Notes for redemption pursuant to Article 16 prior to the close of business on the Business Day immediately preceding August 15, 2029, then a Holder may surrender all or any part of such of its Notes as called for redemption for conversion at any time prior to the close of business on the second Scheduled Trading Day prior to the Redemption Date, even if the Notes are not otherwise convertible at such time. After that time, the right to convert such Notes pursuant to this Section 14.01(b)(v) shall expire, unless the Company defaults in the payment of the Redemption Price, in which case a Holder of Notes may convert its Notes until the Redemption Price has been paid or duly provided for.
Appears in 1 contract
Sources: Indenture (PTC Therapeutics, Inc.)
Conversion Privilege. (a) Subject to and upon in compliance with the provisions of this Article 14, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the Business Day immediately preceding August 15December 1, 2029 2027 under the circumstances and during the periods set forth in Section 14.01(b), and (ii) regardless of the conditions described in Section 14.01(b), on or after August 15December 1, 2029 2027 and prior to the close of business on the second Scheduled Trading Business Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 62.3539 17.7494 shares of Common Stock (subject to adjustment as provided in this Article 14, the “Conversion Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.02, the “Conversion Obligation”).
(ab) (i) Prior to the close of business on the Business Day immediately preceding August 15December 1, 20292027, a Holder may surrender all or any portion of its Notes for conversion at any time during the five consecutive Business Day period immediately after following any five ten consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this subsection (b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on each such Trading Day and the Conversion Rate on each such Trading Day. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this subsection (b)(i) and the definition of Trading Price set forth in this Indenture. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes unless the Company has requested such determination, determination in writing and has provided the Bid Solicitation Agent with the names and contact information of the securities dealers the Company has selected for such purpose; and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000 principal amount of NotesPrice) unless a Holder of at least $1,000,000 2,000,000 aggregate principal amount of Notes requests in writing that the Company make (or such a determination and lesser amount as may then be outstanding) provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the Conversion Rate on such Trading Day, at which time the Company shall instruct three nationally recognized securities dealers to deliver bids and instruct the Bid Solicitation Agent in writing (if other than the Company) to determine, or if the Company is acting as Bid Solicitation Agent, the Company shall will determine, the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Bid Solicitation Agent, or if the Company is acting as Bid Solicitation Agent, the Company determines that the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate, and the Company will instruct the three independent nationally recognized securities dealers selected by the Company to deliver bids to the Bid Solicitation Agent (if other than the Company), or if the Company is acting as Bid Solicitation Agent, to the Company. If (x) the Company is not acting as Bid Solicitation Agent, Agent and the Company does not not, when it is required to, instruct the Bid Solicitation Agent to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentenceobtain bids, or if the Company instructs gives such instruction to the Bid Solicitation Agent to obtain bids Agent, and the Bid Solicitation Agent fails to make such determination, determination or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentencedetermination, then, in either case, the Trading Price per $1,000 principal amount of Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company shall so notify in writing the Holders, the Trustee Trustee, and the Conversion Agent (if other than the Trustee)) in writing. Any such determination shall be conclusive absent manifest error. If, at any time after the Trading Price condition set forth above has been met, the Bid Solicitation Agent, or if the Company is acting as Bid Solicitation Agent, the Company, determines that the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate for such date, the Company shall so notify in writing the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee).
(i) If, prior to the close of business on the Business Day immediately preceding August 15, 2029, the Company elects to:
(A) issue to all or substantially all holders of the Common Stock any rights, options or warrants (other than in connection with a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock) entitling them, for a period of not more than 45 calendar days after the announcement date of such issuance, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance; or
(B) distribute to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase securities of the Company (other than pursuant to a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock), which distribution has a per share value, as reasonably determined by the Board of Directors, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution, then, in either case, the Company shall notify in writing all Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) at least 30 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan, no later than the Business Day after the Company becomes aware that such separation has occurred or will occur); provided, however, that if the Company elects Physical Settlement (to the extent that the Company has not elected another Settlement Method to apply, including pursuant to Section 14.02) in the applicable notice in respect of any conversions that occurs from, and including, the date the Company provides such notice to, and including, the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or issuance (or, if earlier, the date the Company announces that such issuance or distribution will not take place) (the “Distribution Trigger Irrevocable Physical Settlement Period”), the Company shall be permitted to provide no less than 10 Scheduled Trading Days’ notice prior to the Ex-Dividend Date for the applicable issuance or distribution, in which case the Company shall be required to settle all conversions of Notes with a Conversion Date occurring during the Distribution Trigger Irrevocable Physical Settlement Period by Physical Settlement, and the Company shall describe the same in such notice. Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at any time until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take place, in each case, even if the Notes are not otherwise convertible at such time. Notwithstanding the foregoing, Holders may not convert their Notes under this Section 14.01(b)(ii) if they participate (other than in the case of a share split or share combination) at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described under this Section 14.01(b)(ii)(A) or (B) without having to convert their Notes as if they held a number of shares of Common Stock equal to the then-effective Conversion Rate multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. Neither the Trustee not the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether an issuance or distribution described in this clause (ii) has occurredwriting.
(ii) If a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section 15.02, or if the Company is a party to a Share Exchange Event (other than a Share Exchange Event that is solely for the purpose of changing the Company’s jurisdiction of organization that does not constitute a Fundamental Change or Make-Whole Fundamental Change) that occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, in each case, pursuant to which the Common Stock would be converted into cash, securities or other assets, all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the effective date of the transaction until the earlier of (x) 35 Trading Days after the effective date of such transaction or, if such transaction also constitutes a Fundamental Change, until the close of business on the Business Day immediately preceding the related Fundamental Change Repurchase Date and (y) the second Scheduled Trading Day immediately preceding the Maturity Date. The Company shall notify in writing Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the effective date of such transaction. Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether a Fundamental Change or a Make-Whole Fundamental Change has occurred.
(iii) Prior to the close of business on the Business Day immediately preceding August 15, 2029, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar quarter commencing after the calendar quarter ending on March 31, 2025 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day. The Company shall determine at the beginning of each calendar quarter commencing after March 31, 2025 whether the Notes may be surrendered for conversion in accordance with this clause (iv) and shall provide written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) if the Notes become convertible in accordance with this clause (iv). Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether the condition set forth in this clause (iv) has been met.
(iv) If the Company calls any or all of the Notes for redemption pursuant to Article 16 prior to the close of business on the Business Day immediately preceding August 15, 2029, then a Holder may surrender all or any part of such of its Notes as called for redemption for conversion at any time prior to the close of business on the second Scheduled Trading Day prior to the Redemption Date, even if the Notes are not otherwise convertible at such time. After that time, the right to convert such Notes pursuant to this Section 14.01(b)(v) shall expire, unless the Company defaults in the payment of the Redemption Price, in which case a Holder of Notes may convert its Notes until the Redemption Price has been paid or duly provided for.
Appears in 1 contract
Sources: Indenture (Snap Inc)
Conversion Privilege. (a) Subject to and upon compliance with the provisions of this Article 14, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the Business Day immediately preceding August 15, 2029 2025, under the circumstances and during the periods set forth in Section 14.01(b), and (ii) regardless of the conditions described in Section 14.01(b), on or after August 15, 2029 2025 and prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 62.3539 14.2966 shares of Common Stock (subject to adjustment as provided in this Article 14, the “Conversion Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.02, the “Conversion Obligation”).
(ab) (i) Prior to the close of business on the Business Day immediately preceding August 15, 20292025, a Holder may surrender all or any portion of its Notes for conversion at any time during the five Business Day period immediately after any five consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this subsection (b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on each such Trading Day and the Conversion Rate on each such Trading Day. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this subsection (b)(i) and the definition of Trading Price set forth in this Indenture. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes unless the Company has requested such determination, and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes) unless a Holder of at least $1,000,000 aggregate principal amount of Notes requests in writing that the Company make such a determination and Note provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the Conversion Rate on such Trading Day, at which time the Company shall instruct three nationally recognized securities dealers to deliver bids and instruct the Bid Solicitation Agent (if other than the Company) to determine, or if the Company is acting as Bid Solicitation Agent, the Company shall determine, the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not not, when the Company is required to, instruct the Bid Solicitation Agent to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentence, or if the Company instructs the Bid Solicitation Agent to obtain bids and the Bid Solicitation Agent fails to make such determination, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, then, in either case, the Trading Price per $1,000 principal amount of Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company shall so notify in writing the Holders, the Trustee and the Conversion Agent (if other than the Trustee)) in writing. If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate for such date, the Company shall so notify in writing the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee).
(i) If, prior to the close of business on the Business Day immediately preceding August 15, 2029, the Company elects to:
(A) issue to all or substantially all holders of the Common Stock any rights, options or warrants (other than in connection with a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock) entitling them, for a period of not more than 45 calendar days after the announcement date of such issuance, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance; or
(B) distribute to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase securities of the Company (other than pursuant to a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock), which distribution has a per share value, as reasonably determined by the Board of Directors, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution, then, in either case, the Company shall notify in writing all Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) at least 30 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan, no later than the Business Day after the Company becomes aware that such separation has occurred or will occur); provided, however, that if the Company elects Physical Settlement (to the extent that the Company has not elected another Settlement Method to apply, including pursuant to Section 14.02) in the applicable notice in respect of any conversions that occurs from, and including, the date the Company provides such notice to, and including, the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or issuance (or, if earlier, the date the Company announces that such issuance or distribution will not take place) (the “Distribution Trigger Irrevocable Physical Settlement Period”), the Company shall be permitted to provide no less than 10 Scheduled Trading Days’ notice prior to the Ex-Dividend Date for the applicable issuance or distribution, in which case the Company shall be required to settle all conversions of Notes with a Conversion Date occurring during the Distribution Trigger Irrevocable Physical Settlement Period by Physical Settlement, and the Company shall describe the same in such notice. Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at any time until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take place, in each case, even if the Notes are not otherwise convertible at such time. Notwithstanding the foregoing, Holders may not convert their Notes under this Section 14.01(b)(ii) if they participate (other than in the case of a share split or share combination) at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described under this Section 14.01(b)(ii)(A) or (B) without having to convert their Notes as if they held a number of shares of Common Stock equal to the then-effective Conversion Rate multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. Neither the Trustee not the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether an issuance or distribution described in this clause (ii) has occurredwriting.
(ii) If a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section 15.02, or if the Company is a party to a Share Exchange Event (other than a Share Exchange Event that is solely for the purpose of changing the Company’s jurisdiction of organization that does not constitute a Fundamental Change or Make-Whole Fundamental Change) that occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, in each case, pursuant to which the Common Stock would be converted into cash, securities or other assets, all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the effective date of the transaction until the earlier of (x) 35 Trading Days after the effective date of such transaction or, if such transaction also constitutes a Fundamental Change, until the close of business on the Business Day immediately preceding the related Fundamental Change Repurchase Date and (y) the second Scheduled Trading Day immediately preceding the Maturity Date. The Company shall notify in writing Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the effective date of such transaction. Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether a Fundamental Change or a Make-Whole Fundamental Change has occurred.
(iii) Prior to the close of business on the Business Day immediately preceding August 15, 2029, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar quarter commencing after the calendar quarter ending on March 31, 2025 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day. The Company shall determine at the beginning of each calendar quarter commencing after March 31, 2025 whether the Notes may be surrendered for conversion in accordance with this clause (iv) and shall provide written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) if the Notes become convertible in accordance with this clause (iv). Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether the condition set forth in this clause (iv) has been met.
(iv) If the Company calls any or all of the Notes for redemption pursuant to Article 16 prior to the close of business on the Business Day immediately preceding August 15, 2029, then a Holder may surrender all or any part of such of its Notes as called for redemption for conversion at any time prior to the close of business on the second Scheduled Trading Day prior to the Redemption Date, even if the Notes are not otherwise convertible at such time. After that time, the right to convert such Notes pursuant to this Section 14.01(b)(v) shall expire, unless the Company defaults in the payment of the Redemption Price, in which case a Holder of Notes may convert its Notes until the Redemption Price has been paid or duly provided for.
Appears in 1 contract
Conversion Privilege. (a) Subject to and upon compliance with the provisions of this Article Article 14, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section Section 14.01(b), at any time prior to the close of business on the Business Day immediately preceding August June 15, 2029 2026 under the circumstances and during the periods set forth in Section Section 14.01(b), and (ii) regardless of the conditions described in Section Section 14.01(b), on or after August June 15, 2029 2026 and prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 62.3539 39.9956 shares of Common Stock (subject to adjustment as provided in this Article Article 14, the “Conversion Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section Section 14.02, the “Conversion Obligation”).
(ab) (i) Prior to the close of business on the Business Day immediately preceding August June 15, 20292026, a Holder may surrender all or any portion of its Notes for conversion at any time during the five Business Day period immediately after any five consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this subsection (b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on each such Trading Day and the Conversion Rate on each such Trading Day. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this subsection (b)(i) and the definition of Trading Price set forth in this Indenture. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes unless the Company has requested such determination, and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes) unless a Holder of at least $1,000,000 aggregate principal amount of Notes requests in writing that the Company make such a determination and provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the Conversion Rate on such Trading Day, at which time the Company shall instruct three nationally recognized securities dealers to deliver bids and instruct the Bid Solicitation Agent (if other than the Company) to determine, or if the Company is acting as Bid Solicitation Agent, the Company shall determine, the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not instruct the Bid Solicitation Agent to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentence, or if the Company instructs the Bid Solicitation Agent to obtain bids and the Bid Solicitation Agent fails to make such determination, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, then, in either case, the Trading Price per $1,000 principal amount of Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company shall so notify in writing the Holders, the Trustee and the Conversion Agent (if other than the Trustee). If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate for such date, the Company shall so notify in writing the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee).
(i) If, prior to the close of business on the Business Day immediately preceding August 15, 2029, the Company elects to:
(A) issue to all or substantially all holders of the Common Stock any rights, options or warrants (other than in connection with a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock) entitling them, for a period of not more than 45 calendar days after the announcement date of such issuance, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance; or
(B) distribute to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase securities of the Company (other than pursuant to a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock), which distribution has a per share value, as reasonably determined by the Board of Directors, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution, then, in either case, the Company shall notify in writing all Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) at least 30 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan, no later than the Business Day after the Company becomes aware that such separation has occurred or will occur); provided, however, that if the Company elects Physical Settlement (to the extent that the Company has not elected another Settlement Method to apply, including pursuant to Section 14.02) in the applicable notice in respect of any conversions that occurs from, and including, the date the Company provides such notice to, and including, the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or issuance (or, if earlier, the date the Company announces that such issuance or distribution will not take place) (the “Distribution Trigger Irrevocable Physical Settlement Period”), the Company shall be permitted to provide no less than 10 Scheduled Trading Days’ notice prior to the Ex-Dividend Date for the applicable issuance or distribution, in which case the Company shall be required to settle all conversions of Notes with a Conversion Date occurring during the Distribution Trigger Irrevocable Physical Settlement Period by Physical Settlement, and the Company shall describe the same in such notice. Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at any time until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take place, in each case, even if the Notes are not otherwise convertible at such time. Notwithstanding the foregoing, Holders may not convert their Notes under this Section 14.01(b)(ii) if they participate (other than in the case of a share split or share combination) at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described under this Section 14.01(b)(ii)(A) or (B) without having to convert their Notes as if they held a number of shares of Common Stock equal to the then-effective Conversion Rate multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. Neither the Trustee not the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether an issuance or distribution described in this clause (ii) has occurred.
(ii) If a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section 15.02, or if the Company is a party to a Share Exchange Event (other than a Share Exchange Event that is solely for the purpose of changing the Company’s jurisdiction of organization that does not constitute a Fundamental Change or Make-Whole Fundamental Change) that occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, in each case, pursuant to which the Common Stock would be converted into cash, securities or other assets, all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the effective date of the transaction until the earlier of (x) 35 Trading Days after the effective date of such transaction or, if such transaction also constitutes a Fundamental Change, until the close of business on the Business Day immediately preceding the related Fundamental Change Repurchase Date and (y) the second Scheduled Trading Day immediately preceding the Maturity Date. The Company shall notify in writing Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the effective date of such transaction. Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether a Fundamental Change or a Make-Whole Fundamental Change has occurred.
(iii) Prior to the close of business on the Business Day immediately preceding August 15, 2029, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar quarter commencing after the calendar quarter ending on March 31, 2025 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day. The Company shall determine at the beginning of each calendar quarter commencing after March 31, 2025 whether the Notes may be surrendered for conversion in accordance with this clause (iv) and shall provide written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) if the Notes become convertible in accordance with this clause (iv). Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether the condition set forth in this clause (iv) has been met.
(iv) If the Company calls any or all of the Notes for redemption pursuant to Article 16 prior to the close of business on the Business Day immediately preceding August 15, 2029, then a Holder may surrender all or any part of such of its Notes as called for redemption for conversion at any time prior to the close of business on the second Scheduled Trading Day prior to the Redemption Date, even if the Notes are not otherwise convertible at such time. After that time, the right to convert such Notes pursuant to this Section 14.01(b)(v) shall expire, unless the Company defaults in the payment of the Redemption Price, in which case a Holder of Notes may convert its Notes until the Redemption Price has been paid or duly provided for.
Appears in 1 contract
Sources: Indenture (Porch Group, Inc.)
Conversion Privilege. (a) Subject to and upon compliance with the provisions of this Article 14, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral a multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the Business Day immediately preceding August September 15, 2029 under the circumstances and during the periods set forth in Section 14.01(b), and (ii) regardless of the conditions described in Section 14.01(b), on or after August September 15, 2029 and prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 62.3539 11.6505 shares of Common Stock (subject to adjustment as provided in this Article 14, the “Conversion Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.02, the “Conversion Obligation”).
(ab) (i) Prior to the close of business on the Business Day immediately preceding August September 15, 2029, a Holder may surrender all or any portion of its Notes for conversion at any time during the five Business Day period immediately after any five consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this subsection (b)(iSection 14.01(b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on each such Trading Day and the Conversion Rate on each such Trading Day. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this subsection (b)(iSection 14.01(b)(i) and the definition of Trading Price set forth in this Indenture. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes unless the Company has requested such determinationdetermination in writing, and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes) unless a Holder of at least $1,000,000 aggregate principal amount of Notes requests in writing that the Company make such a determination and provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the Conversion Rate on such Trading DayRate, at which time (i) the Company shall instruct the three independent nationally recognized securities dealers to deliver bids to the Bid Solicitation Agent and (ii) the Company shall instruct the Bid Solicitation Agent (if other than the Company) to determine, or if the Company is acting as Bid Solicitation Agent, the Company shall determine, the Trading Price per $1,000 principal amount of Notes based on the bids solicited beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not instruct the Bid Solicitation Agent in writing to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentence, or if the Company so instructs the Bid Solicitation Agent to obtain bids and the Bid Solicitation Agent fails to make such determination, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, then, in either case, the Trading Price per $1,000 principal amount of Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate on each Trading Day of such failure. Any such determination shall be conclusive absent manifest error. If the Trading Price condition set forth above has been met, the Company shall so notify in writing the Holders, the Trustee and the Conversion Agent (if other than the Trustee)) in writing. If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate for such date, the Company shall so notify in writing the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee).
(i) If, prior to in writing that the close of business on the Business Day immediately preceding August 15, 2029, Trading Price condition is no longer met and thereafter neither the Company elects to:
(A) issue to all or substantially all holders of nor the Common Stock any rights, options or warrants (other than in connection with a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock) entitling them, for a period of not more than 45 calendar days after the announcement date of such issuance, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance; or
(B) distribute to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase securities of the Company (other than pursuant to a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock), which distribution has a per share value, as reasonably determined by the Board of Directors, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution, then, in either case, the Company shall notify in writing all Holders of the Notes, the Trustee and the Conversion Bid Solicitation Agent (if other than the TrusteeCompany) at least 30 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan, no later than the Business Day after the Company becomes aware that such separation has occurred or will occur); provided, however, that if the Company elects Physical Settlement (to the extent that the Company has not elected another Settlement Method to apply, including pursuant to Section 14.02) in the applicable notice in respect of any conversions that occurs from, and including, the date the Company provides such notice to, and including, the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or issuance (or, if earlier, the date the Company announces that such issuance or distribution will not take place) (the “Distribution Trigger Irrevocable Physical Settlement Period”), the Company shall be permitted to provide no less than 10 Scheduled Trading Days’ notice prior to the Ex-Dividend Date for the applicable issuance or distribution, in which case the Company shall be required to settle all conversions of Notes with a Conversion Date occurring during the Distribution Trigger Irrevocable Physical Settlement Period by Physical Settlement, and the Company shall describe the same solicit bids again until another request is made as provided in such notice. Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at any time until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take place, in each case, even if the Notes are not otherwise convertible at such time. Notwithstanding the foregoing, Holders may not convert their Notes under this Section 14.01(b)(ii) if they participate (other than in the case of a share split or share combination) at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described under this Section 14.01(b)(ii)(A) or (B) without having to convert their Notes as if they held a number of shares of Common Stock equal to the then-effective Conversion Rate multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. Neither the Trustee not the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether an issuance or distribution described in this clause (ii) has occurred14.01(b)(i).
(ii) If a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section 15.02, or if the Company is a party to a Share Exchange Event (other than a Share Exchange Event that is solely for the purpose of changing the Company’s jurisdiction of organization that does not constitute a Fundamental Change or Make-Whole Fundamental Change) that occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, in each case, pursuant to which the Common Stock would be converted into cash, securities or other assets, all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the effective date of the transaction until the earlier of (x) 35 Trading Days after the effective date of such transaction or, if such transaction also constitutes a Fundamental Change, until the close of business on the Business Day immediately preceding the related Fundamental Change Repurchase Date and (y) the second Scheduled Trading Day immediately preceding the Maturity Date. The Company shall notify in writing Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the effective date of such transaction. Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether a Fundamental Change or a Make-Whole Fundamental Change has occurred.
(iii) Prior to the close of business on the Business Day immediately preceding August 15, 2029, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar quarter commencing after the calendar quarter ending on March 31, 2025 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day. The Company shall determine at the beginning of each calendar quarter commencing after March 31, 2025 whether the Notes may be surrendered for conversion in accordance with this clause (iv) and shall provide written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) if the Notes become convertible in accordance with this clause (iv). Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether the condition set forth in this clause (iv) has been met.
(iv) If the Company calls any or all of the Notes for redemption pursuant to Article 16 prior to the close of business on the Business Day immediately preceding August 15, 2029, then a Holder may surrender all or any part of such of its Notes as called for redemption for conversion at any time prior to the close of business on the second Scheduled Trading Day prior to the Redemption Date, even if the Notes are not otherwise convertible at such time. After that time, the right to convert such Notes pursuant to this Section 14.01(b)(v) shall expire, unless the Company defaults in the payment of the Redemption Price, in which case a Holder of Notes may convert its Notes until the Redemption Price has been paid or duly provided for.
Appears in 1 contract
Sources: Indenture (Nutanix, Inc.)
Conversion Privilege. (a) Subject to and upon compliance with the provisions of this Article 14, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the Business Day immediately preceding August January 15, 2029 2026 under the circumstances and during the periods set forth in Section 14.01(b), and (ii) regardless of the conditions described in Section 14.01(b), on or after August January 15, 2029 2026 and prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 62.3539 8.4131 shares of Common Stock (subject to adjustment as provided in this Article 14, the “Conversion Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.02, the “Conversion Obligation”).
(a) (i) Prior to the close of business on the Business Day immediately preceding August January 15, 20292026, a Holder may surrender all or any portion of its Notes for conversion at any time during the five consecutive Business Day period immediately after any five ten consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this subsection (b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on each such Trading Day and the Conversion Rate on each such Trading Day. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this subsection (b)(i) and the definition of Trading Price set forth in this Indenture. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes unless the Company has requested such determination, and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes) unless a Holder or Holders of at least $1,000,000 aggregate 5,000,000 principal amount of Notes requests in writing that the Company make such a determination and provides aggregate provide(s) the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the Conversion Rate on such Trading Day, at which time the Company shall instruct three nationally recognized securities dealers to deliver bids and instruct the Bid Solicitation Agent (if other than the Company) in writing to determine, or if the Company is acting as Bid Solicitation Agent, the Company shall determine, the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not not, when the Company is required to, instruct the Bid Solicitation Agent to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentence, or if the Company instructs gives such instruction to the Bid Solicitation Agent to obtain bids and the Bid Solicitation Agent fails to make such determination, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, then, in either case, the Trading Price per $1,000 principal amount of Notes on any date shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company shall promptly so notify in writing the Holders, the Trustee and the Conversion Agent (if other than the Trustee)) in writing. Any such determination shall be conclusive absent manifest error. If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate for such date, the Company shall promptly so notify in writing the Holders of the NotesHolders, the Trustee and the Conversion Agent (if other than the Trustee) in writing and thereafter neither the Company nor the Bid Solicitation Agent (if other than the Company) shall be required to solicit bids (or determine the Trading Price of the Notes as set forth in this Indenture) again unless a new Holder request is made as provided in this subsection (b)(i). Neither the Trustee nor the Bid Solicitation Agent (if other than the Company) shall have any liability or responsibility for any Trading Price or related information or the accuracy thereof.
(iii) If, prior to the close of business on the Business Day immediately preceding August January 15, 20292026, the Company elects to:
(A) issue distribute to all or substantially all holders of the Common Stock any rights, options or warrants (other than in connection with a stockholder rights plan so long as prior to the separation of such rights have not separated from the shares of the Common Stock) entitling them, for a period of not more than 45 60 calendar days after the announcement date of such issuancedistribution, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuancedistribution; or
(B) distribute to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase securities of the Company (other than pursuant to in connection with a stockholder rights plan so long as prior to separation of such rights have not separated from the shares of the Common Stock), which distribution has a per share value, as reasonably determined by the Board of DirectorsCompany in good faith, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution, then, in either case, the Company shall notify in writing all Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) in writing at least 30 31 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan, no later than the Business Day as soon as reasonably practicable after the Company becomes aware that such separation or triggering event has occurred or will occur); provided, however, that if the Company elects Physical Settlement (to the extent that the Company has not elected another Settlement Method to apply, including pursuant to Section 14.02) in the applicable notice in respect of any conversions that occurs from, and including, the date the Company provides such notice to, and including, the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or issuance (or, if earlier, the date the Company announces that such issuance or distribution will not take place) (the “Distribution Trigger Irrevocable Physical Settlement Period”), the Company shall be permitted to provide no less than 10 Scheduled Trading Days’ notice prior to the Ex-Dividend Date for the applicable issuance or distribution, in which case the Company shall be required to settle all conversions of Notes with a Conversion Date occurring during the Distribution Trigger Irrevocable Physical Settlement Period by Physical Settlement, and the Company shall describe the same in such notice. Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at any time until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take place, in each case, even if the Notes are not otherwise convertible at such time. Notwithstanding the foregoing, ; provided that Holders may not convert their Notes under pursuant to this Section 14.01(b)(iisubsection (b)(ii) if they participate (other than in the case of a share split or share combination) participate, at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described under this Section 14.01(b)(ii)(Ain clause (A) or (B) of this subsection (b)(ii) without having to convert their Notes as if they held a number of shares of Common Stock equal to the then-effective Conversion Rate Rate, multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. Neither the Trustee not the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether an issuance or distribution described in this clause (ii) has occurred.
(iiiii) If (A) a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close of business on the Business Day immediately preceding August January 15, 20292026, regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section 15.02, or (B) if the Company is a party to a Share Exchange Event (other than a Share Exchange Event that is solely for the purpose of changing the Company’s jurisdiction of organization that (x) does not constitute a Fundamental Change or a Make-Whole Fundamental ChangeChange and (y) results in a reclassification, conversion or exchange of outstanding shares of Common Stock solely into shares of common stock of the surviving entity and such common stock becomes Reference Property for the Notes) that occurs prior to the close of business on the Business Day immediately preceding August January 15, 20292026 (each such Fundamental Change, in each caseMake-Whole Fundamental Change or Share Exchange Event, pursuant to which the Common Stock would be converted into cash, securities or other assetsa “Corporate Event”), all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the effective date of the transaction such Corporate Event until the earlier of (x) 35 Trading Days after the effective date of the Corporate Event (or, if the Company gives notice after the effective date of such transaction Corporate Event, until 35 Trading Days after the date the Company gives notice of such Corporate Event) or, if such transaction Corporate Event also constitutes a Fundamental Change (other than an Exempted Fundamental Change), until the close of business on the Business Day immediately preceding the related Fundamental Change Repurchase Date and (y) the second Scheduled Trading close of business on the Business Day immediately preceding the Maturity Date. The Company shall notify in writing Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than in writing as promptly as practicable following the effective date of such transaction. Neither Corporate Event, but in no event later than two Business Days after the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination effective date of whether a Fundamental Change or a Make-Whole Fundamental Change has occurredsuch Corporate Event.
(iiiiv) Prior to the close of business on the Business Day immediately preceding August January 15, 20292026, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar quarter commencing after the calendar quarter ending on March 31June 30, 2025 2023 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day. The Company shall determine at the beginning of each calendar quarter commencing after March 31June 30, 2025 2023 whether the Notes may be surrendered for conversion in accordance with this clause (iv) and shall provide prompt written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) if the Notes become convertible in accordance with this clause (iv). Neither the Trustee nor the Conversion Agent (if other than the Trustee) shall have any duty to determine or verify such determination by the Company’s Company pursuant to this clause (iv) or any similar determination of whether by the Company that the Notes have become convertible in accordance with any condition set forth in this clause (iv) has been metSection 14.01(b).
(iv) If the Company calls any or all of the Notes for redemption pursuant to Article 16 prior to the close of business on the Business Day immediately preceding August 15, 2029, then a Holder may surrender all or any part of such of its Notes as called for redemption for conversion at any time prior to the close of business on the second Scheduled Trading Day prior to the Redemption Date, even if the Notes are not otherwise convertible at such time. After that time, the right to convert such Notes pursuant to this Section 14.01(b)(v) shall expire, unless the Company defaults in the payment of the Redemption Price, in which case a Holder of Notes may convert its Notes until the Redemption Price has been paid or duly provided for.
Appears in 1 contract
Sources: Indenture (Duke Energy CORP)
Conversion Privilege. (a) Subject to and upon compliance with the provisions of this Article 14, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the Business Day immediately preceding August March 15, 2029 2024 under the circumstances and during the periods set forth in Section 14.01(b), and (ii) regardless of the conditions described in Section 14.01(b), on or after August March 15, 2029 2024 and prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 62.3539 35.1849 shares of Common Stock (subject to adjustment as provided in this Article 14, the “Conversion Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.02, the “Conversion Obligation”).
(ab) (i) Prior to the close of business on the Business Day immediately preceding August March 15, 20292024, a Holder may surrender all or any portion of its Notes for conversion at any time during the five Business Day period immediately after any five consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this subsection (b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on each such Trading Day and the Conversion Rate on each such Trading Day. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this subsection (b)(i) and the definition of Trading Price set forth in this Indenture. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes unless the Company has requested such determination, and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes) unless a Holder of at least $1,000,000 2,000,000 aggregate principal amount of Notes requests in writing that the Company make such a determination and provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the Conversion Rate on such Trading Day, at which time the Company shall instruct three nationally recognized securities dealers to deliver bids and instruct the Bid Solicitation Agent (if other than the Company) to determine, or if the Company is acting as Bid Solicitation Agent, the Company shall determine, the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not not, when the Company is required to, instruct the Bid Solicitation Agent to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentence, or if the Company instructs the Bid Solicitation Agent to obtain bids and the Bid Solicitation Agent fails to make such determination, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, then, in either case, the Trading Price per $1,000 principal amount of Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been metmet on any Trading Day, the Company shall so notify in writing the Holders, the Trustee and the Conversion Agent (if other than the Trustee)) in writing on or within one Business Day of such Trading Day. Any such determination shall be conclusive absent manifest error. If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate for such date, the Company shall so notify in writing the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee).
(i) If, prior to the close of business on the Business Day immediately preceding August 15, 2029, in writing and thereafter neither the Company elects to:
(A) issue to all or substantially all holders of nor the Common Stock any rights, options or warrants (other than in connection with a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock) entitling them, for a period of not more than 45 calendar days after the announcement date of such issuance, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance; or
(B) distribute to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase securities of the Company (other than pursuant to a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock), which distribution has a per share value, as reasonably determined by the Board of Directors, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution, then, in either case, the Company shall notify in writing all Holders of the Notes, the Trustee and the Conversion Bid Solicitation Agent (if other than the TrusteeCompany) at least 30 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan, no later than the Business Day after the Company becomes aware that such separation has occurred or will occur); provided, however, that if the Company elects Physical Settlement (to the extent that the Company has not elected another Settlement Method to apply, including pursuant to Section 14.02) in the applicable notice in respect of any conversions that occurs from, and including, the date the Company provides such notice to, and including, the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or issuance (or, if earlier, the date the Company announces that such issuance or distribution will not take place) (the “Distribution Trigger Irrevocable Physical Settlement Period”), the Company shall be permitted to provide no less than 10 Scheduled Trading Days’ notice prior to the Ex-Dividend Date for the applicable issuance or distribution, in which case the Company shall be required to settle all conversions of Notes with a Conversion Date occurring during solicit bids (or determine the Distribution Trigger Irrevocable Physical Settlement Period by Physical Settlement, and the Company shall describe the same in such notice. Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at any time until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take place, in each case, even if the Notes are not otherwise convertible at such time. Notwithstanding the foregoing, Holders may not convert their Notes under this Section 14.01(b)(ii) if they participate (other than in the case of a share split or share combination) at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described under this Section 14.01(b)(ii)(A) or (B) without having to convert their Notes as if they held a number of shares of Common Stock equal to the then-effective Conversion Rate multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. Neither the Trustee not the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether an issuance or distribution described in this clause (ii) has occurred.
(ii) If a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section 15.02, or if the Company is a party to a Share Exchange Event (other than a Share Exchange Event that is solely for the purpose of changing the Company’s jurisdiction of organization that does not constitute a Fundamental Change or Make-Whole Fundamental Change) that occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, in each case, pursuant to which the Common Stock would be converted into cash, securities or other assets, all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the effective date of the transaction until the earlier of (x) 35 Trading Days after the effective date of such transaction or, if such transaction also constitutes a Fundamental Change, until the close of business on the Business Day immediately preceding the related Fundamental Change Repurchase Date and (y) the second Scheduled Trading Day immediately preceding the Maturity Date. The Company shall notify in writing Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the effective date of such transaction. Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether a Fundamental Change or a Make-Whole Fundamental Change has occurred.
(iii) Prior to the close of business on the Business Day immediately preceding August 15, 2029, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar quarter commencing after the calendar quarter ending on March 31, 2025 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days Notes as set forth in this Indenture) again unless a new Holder request is made as provided in this subsection (whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day. The Company shall determine at the beginning of each calendar quarter commencing after March 31, 2025 whether the Notes may be surrendered for conversion in accordance with this clause (iv) and shall provide written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) if the Notes become convertible in accordance with this clause (ivb)(i). Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether the Trading Price condition set forth in this clause (iv) above has been met.
(iv) If the Company calls any or all of the Notes for redemption pursuant to Article 16 prior to the close of business on the Business Day immediately preceding August 15, 2029, then a Holder may surrender all or any part of such of its Notes as called for redemption for conversion at any time prior to the close of business on the second Scheduled Trading Day prior to the Redemption Date, even if the Notes are not otherwise convertible at such time. After that time, the right to convert such Notes pursuant to this Section 14.01(b)(v) shall expire, unless the Company defaults in the payment of the Redemption Price, in which case a Holder of Notes may convert its Notes until the Redemption Price has been paid or duly provided for.
Appears in 1 contract
Conversion Privilege. (a) Subject to and upon compliance with the provisions of this Article 14, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is $US$1,000 principal amount or an integral multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the Business Day immediately preceding August 15September 1, 2029 2025 under the circumstances and during the periods set forth in Section 14.01(b), and (ii) regardless of the conditions described in Section 14.01(b), on or after August 15September 1, 2029 2025 and prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 62.3539 shares of Common Stock 11.0549 ADSs (subject to adjustment as provided in this Article 14, the “Conversion Rate”) per $US$1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.02, the “Conversion Obligation”).
(ab) (i) Prior to the close of business on the Business Day immediately preceding August 15September 1, 20292025, a Holder may surrender all or any portion of its Notes for conversion at any time during the five Business Day period immediately after any five ten consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $US$1,000 principal amount of Notes, as determined following a written request by a Holder of Notes in accordance with this subsection (b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock ADSs on each such Trading Day and the Conversion Rate on each such Trading Day. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this subsection (b)(i) and the definition of Trading Price set forth in this Indenture. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $US$1,000 principal amount of Notes unless the Company has requested such determinationdetermination in writing, and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $US$1,000 principal amount of Notes) unless a Holder of at least $1,000,000 US$2,000,000 aggregate principal amount of Notes requests in writing that the Company make such a determination and provides the Company with reasonable evidence that the Trading Price per $US$1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Common Stock ADSs on such Trading Day and the Conversion Rate on such Trading Day, at which time the Company shall instruct three nationally recognized securities dealers to deliver bids and instruct the Bid Solicitation Agent (if other than the Company) in writing to determine, or if the Company is acting as Bid Solicitation Agent, the Company shall determine, the Trading Price per $US$1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $US$1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock ADSs and the Conversion Rate. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not not, when the Company is required to, instruct the Bid Solicitation Agent to determine the Trading Price per $US$1,000 principal amount of Notes when obligated as provided in the preceding sentence, or if the Company instructs the Bid Solicitation Agent in writing to obtain bids and the Bid Solicitation Agent fails to make such determination, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, then, in either case, the Trading Price per $US$1,000 principal amount of Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock ADSs and the Conversion Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company shall so notify in writing the Holders, the Trustee and the Conversion Agent (if other than the Trustee)) in writing. If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $US$1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock ADSs and the Conversion Rate for such date, the Company shall so notify in writing the Holders of the NotesHolders, the Trustee and the Conversion Agent (if other than the Trustee).
(i) If, prior to the close of business on the Business Day immediately preceding August 15, 2029, and thereafter neither the Company elects to:
(A) issue to all or substantially all holders of nor the Common Stock any rights, options or warrants (other than in connection with a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock) entitling them, for a period of not more than 45 calendar days after the announcement date of such issuance, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance; or
(B) distribute to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase securities of the Company (other than pursuant to a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock), which distribution has a per share value, as reasonably determined by the Board of Directors, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution, then, in either case, the Company shall notify in writing all Holders of the Notes, the Trustee and the Conversion Bid Solicitation Agent (if of other than the TrusteeCompany) at least 30 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan, no later than the Business Day after the Company becomes aware that such separation has occurred or will occur); provided, however, that if the Company elects Physical Settlement (to the extent that the Company has not elected another Settlement Method to apply, including pursuant to Section 14.02) in the applicable notice in respect of any conversions that occurs from, and including, the date the Company provides such notice to, and including, the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or issuance (or, if earlier, the date the Company announces that such issuance or distribution will not take place) (the “Distribution Trigger Irrevocable Physical Settlement Period”), the Company shall be permitted to provide no less than 10 Scheduled Trading Days’ notice prior to the Ex-Dividend Date for the applicable issuance or distribution, in which case the Company shall be required to settle all conversions of Notes with solicit bids again until a Conversion Date occurring during the Distribution Trigger Irrevocable Physical Settlement Period by Physical Settlement, and the Company shall describe the same new Holder request is made as provided in such notice. Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at any time until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take place, in each case, even if the Notes are not otherwise convertible at such time. Notwithstanding the foregoing, Holders may not convert their Notes under this Section 14.01(b)(ii) if they participate (other than in the case of a share split or share combination) at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described under this Section 14.01(b)(ii)(A) or (B) without having to convert their Notes as if they held a number of shares of Common Stock equal to the then-effective Conversion Rate multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. Neither the Trustee not the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether an issuance or distribution described in this clause (ii) has occurred14.01.
(ii) If a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section 15.02, or if the Company is a party to a Share Exchange Event (other than a Share Exchange Event that is solely for the purpose of changing the Company’s jurisdiction of organization that does not constitute a Fundamental Change or Make-Whole Fundamental Change) that occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, in each case, pursuant to which the Common Stock would be converted into cash, securities or other assets, all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the effective date of the transaction until the earlier of (x) 35 Trading Days after the effective date of such transaction or, if such transaction also constitutes a Fundamental Change, until the close of business on the Business Day immediately preceding the related Fundamental Change Repurchase Date and (y) the second Scheduled Trading Day immediately preceding the Maturity Date. The Company shall notify in writing Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the effective date of such transaction. Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether a Fundamental Change or a Make-Whole Fundamental Change has occurred.
(iii) Prior to the close of business on the Business Day immediately preceding August 15, 2029, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar quarter commencing after the calendar quarter ending on March 31, 2025 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day. The Company shall determine at the beginning of each calendar quarter commencing after March 31, 2025 whether the Notes may be surrendered for conversion in accordance with this clause (iv) and shall provide written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) if the Notes become convertible in accordance with this clause (iv). Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether the condition set forth in this clause (iv) has been met.
(iv) If the Company calls any or all of the Notes for redemption pursuant to Article 16 prior to the close of business on the Business Day immediately preceding August 15, 2029, then a Holder may surrender all or any part of such of its Notes as called for redemption for conversion at any time prior to the close of business on the second Scheduled Trading Day prior to the Redemption Date, even if the Notes are not otherwise convertible at such time. After that time, the right to convert such Notes pursuant to this Section 14.01(b)(v) shall expire, unless the Company defaults in the payment of the Redemption Price, in which case a Holder of Notes may convert its Notes until the Redemption Price has been paid or duly provided for.
Appears in 1 contract
Sources: Indenture (Sea LTD)
Conversion Privilege. (a) Subject to and upon compliance with the provisions of this Article 14, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the Business Day immediately preceding August 15March 1, 2029 2028 under the circumstances and during the periods set forth in Section 14.01(b), and (ii) regardless of the conditions described in Section 14.01(b), on or after August 15March 1, 2029 2028 and prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 62.3539 35.1710 shares of Common Stock (subject to adjustment as provided in this Article 14, the “Conversion Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.02, the “Conversion Obligation”).
(a) (i) Prior to the close of business on the Business Day immediately preceding August 15March 1, 20292028, a Holder may surrender all or any portion of its Notes for conversion at any time during the five Business Day period immediately after any five ten consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this subsection (b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on each such Trading Day and the Conversion Rate on each such Trading Day. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this subsection (b)(i) and the definition of Trading Price set forth in this Indenture. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes unless the Company has requested such determination, and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes) unless a Holder of at least $1,000,000 aggregate principal amount of Notes requests in writing that the Company make such a determination and Note provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the Conversion Rate on such Trading Day, at which time the Company shall instruct three nationally recognized securities dealers to deliver bids and instruct the Bid Solicitation Agent (if other than the Company) to determine, or if the Company is acting as Bid Solicitation Agent, the Company shall determine, the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not not, when the Company is required to, instruct the Bid Solicitation Agent to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentence, or if the Company instructs gives such instruction to the Bid Solicitation Agent to obtain bids and the Bid Solicitation Agent fails to make such determination, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, then, in either case, the Trading Price per $1,000 principal amount of Notes on any date shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company shall so notify in writing the Holders, the Trustee and the Conversion Agent (if other than the Trustee). If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate for such date, the Company shall so notify in writing the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee).
(i) If, prior to the close of business on the Business Day immediately preceding August 15, 2029, the Company elects to:
(A) issue to all or substantially all holders of the Common Stock any rights, options or warrants (other than in connection with a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock) entitling them, for a period of not more than 45 calendar days after the announcement date of such issuance, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance; or
(B) distribute to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase securities of the Company (other than pursuant to a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock), which distribution has a per share value, as reasonably determined by the Board of Directors, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution, then, in either case, the Company shall notify in writing all Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) at least 30 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan, no later than the Business Day after the Company becomes aware that such separation has occurred or will occur); provided, however, that if the Company elects Physical Settlement (to the extent that the Company has not elected another Settlement Method to apply, including pursuant to Section 14.02) in the applicable notice in respect of any conversions that occurs from, and including, the date the Company provides such notice to, and including, the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or issuance (or, if earlier, the date the Company announces that such issuance or distribution will not take place) (the “Distribution Trigger Irrevocable Physical Settlement Period”), the Company shall be permitted to provide no less than 10 Scheduled Trading Days’ notice prior to the Ex-Dividend Date for the applicable issuance or distribution, in which case the Company shall be required to settle all conversions of Notes with a Conversion Date occurring during the Distribution Trigger Irrevocable Physical Settlement Period by Physical Settlement, and the Company shall describe the same in such notice. Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at any time until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take place, in each case, even if the Notes are not otherwise convertible at such time. Notwithstanding the foregoing, Holders may not convert their Notes under this Section 14.01(b)(ii) if they participate (other than in the case of a share split or share combination) at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described under this Section 14.01(b)(ii)(A) or (B) without having to convert their Notes as if they held a number of shares of Common Stock equal to the then-effective Conversion Rate multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. Neither the Trustee not the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether an issuance or distribution described in this clause (ii) has occurred.
(ii) If a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section 15.02, or if the Company is a party to a Share Exchange Event (other than a Share Exchange Event that is solely for the purpose of changing the Company’s jurisdiction of organization that does not constitute a Fundamental Change or Make-Whole Fundamental Change) that occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, in each case, pursuant to which the Common Stock would be converted into cash, securities or other assets, all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the effective date of the transaction until the earlier of (x) 35 Trading Days after the effective date of such transaction or, if such transaction also constitutes a Fundamental Change, until the close of business on the Business Day immediately preceding the related Fundamental Change Repurchase Date and (y) the second Scheduled Trading Day immediately preceding the Maturity Date. The Company shall notify in writing Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the effective date of such transaction. Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether a Fundamental Change or a Make-Whole Fundamental Change has occurred.
(iii) Prior to the close of business on the Business Day immediately preceding August 15, 2029, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar quarter commencing after the calendar quarter ending on March 31, 2025 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day. The Company shall determine at the beginning of each calendar quarter commencing after March 31, 2025 whether the Notes may be surrendered for conversion in accordance with this clause (iv) and shall provide written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) if the Notes become convertible in accordance with this clause (iv)writing. Neither the Trustee nor the Conversion Agent Any such determination shall have any duty to determine or verify the Company’s determination of whether the condition set forth in this clause (iv) has been met.
(iv) If the Company calls any or all of the Notes for redemption pursuant to Article 16 prior to the close of business on the Business Day immediately preceding August 15, 2029, then a Holder may surrender all or any part of such of its Notes as called for redemption for conversion at any time prior to the close of business on the second Scheduled Trading Day prior to the Redemption Date, even if the Notes are not otherwise convertible at such time. After that time, the right to convert such Notes pursuant to this Section 14.01(b)(v) shall expire, unless the Company defaults in the payment of the Redemption Price, in which case a Holder of Notes may convert its Notes until the Redemption Price has been paid or duly provided for.be conclusive absent manifest
Appears in 1 contract
Sources: Indenture (World Kinect Corp)
Conversion Privilege. (a) Subject to and upon compliance with the provisions of this Article 14, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the Business Day immediately preceding August 15May 1, 2029 2020 under the circumstances and during the periods set forth in Section 14.01(b), and (ii) regardless of the conditions described in Section 14.01(b), on or after August 15May 1, 2029 2020 and prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 62.3539 30.1069 shares of Common Stock (subject to adjustment as provided in this Article 14, the “Conversion Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.02, the “Conversion Obligation”).
(a) (i) Prior to the close of business on the Business Day immediately preceding August 15May 1, 20292020, a Holder may surrender all or any portion of its Notes for conversion at any time during the five consecutive Business Day period immediately after any five consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this subsection (b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on each such Trading Day and the Conversion Rate on each such Trading Day. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this subsection (b)(i) and the definition of Trading Price set forth in this Indenture. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes unless the Company has requested such determination, and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes) unless a Holder of at least $1,000,000 aggregate principal amount of Notes requests in writing that the Company make such a determination and provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the Conversion Rate on such Trading Day, at which time the Company shall instruct three nationally recognized securities dealers to deliver bids and instruct the Bid Solicitation Agent (if other than the Company) to determine, or if the Company is acting as Bid Solicitation Agent, the Company shall determine, the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not instruct the Bid Solicitation Agent to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentence, or if the Company instructs the Bid Solicitation Agent to obtain bids and the Bid Solicitation Agent fails to make such determination, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, then, in either case, the Trading Price per $1,000 principal amount of Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate on each Trading Day of such failurethe Company or the Bid Solicitation Agent fails to do so. If the Trading Price condition set forth above has been met, the Company shall so notify in writing the Holders, the Trustee and the Conversion Agent (if other than the Trustee). If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate for such date, the Company shall so notify in writing the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee).
(iii) If, prior to the close of business on the Business Day immediately preceding August 15May 1, 20292020, the Company elects to:
(A) issue to all or substantially all holders of the Common Stock any rights, options or warrants (other than in connection with a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock) entitling them, for a period of not more than 45 calendar days after the announcement date of such issuance, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance; or
(B) distribute to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase securities of the Company (other than pursuant to a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock), which distribution has a per share value, as reasonably determined by the Board of Directors, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution, then, in either case, the Company shall notify in writing all Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) at least 30 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan, no later than the Business Day after the Company becomes aware that such separation has occurred or will occur); provided, however, that if the Company elects Physical Settlement (to the extent that the Company has not elected another Settlement Method to apply, including pursuant to Section 14.02) in the applicable notice in respect of any conversions that occurs from, and including, the date the Company provides such notice to, and including, the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or issuance (or, if earlier, the date the Company announces that such issuance or distribution will not take place) (the “Distribution Trigger Irrevocable Physical Settlement Period”), the Company shall be permitted to provide no less than 10 Scheduled Trading Days’ notice prior to the Ex-Dividend Date for the applicable issuance or distribution, in which case the Company shall be required to settle all conversions of Notes with a Conversion Date occurring during the Distribution Trigger Irrevocable Physical Settlement Period by Physical Settlement, and the Company shall describe the same in such notice. Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at any time until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take place, in each case, even if the Notes are not otherwise convertible at such time. Notwithstanding the foregoing, Holders may not convert their Notes under this Section 14.01(b)(ii) if they participate (other than in the case of a share split or share combination) at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described under this Section 14.01(b)(ii)(A) or (B) without having to convert their Notes as if they held a number of shares of Common Stock equal to the then-effective Conversion Rate multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. Neither the Trustee not the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether an issuance or distribution described in this clause (ii) has occurred.
(ii) If a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section 15.02, or if the Company is a party to a Share Exchange Event (other than a Share Exchange Event that is solely for the purpose of changing the Company’s jurisdiction of organization that does not constitute a Fundamental Change or Make-Whole Fundamental Change) that occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, in each case, pursuant to which the Common Stock would be converted into cash, securities or other assets, all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the effective date of the transaction until the earlier of (x) 35 Trading Days after the effective date of such transaction or, if such transaction also constitutes a Fundamental Change, until the close of business on the Business Day immediately preceding the related Fundamental Change Repurchase Date and (y) the second Scheduled Trading Day immediately preceding the Maturity Date. The Company shall notify in writing Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the effective date of such transaction. Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether a Fundamental Change or a Make-Whole Fundamental Change has occurred.
(iii) Prior to the close of business on the Business Day immediately preceding August 15, 2029, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar quarter commencing after the calendar quarter ending on March 31, 2025 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day. The Company shall determine at the beginning of each calendar quarter commencing after March 31, 2025 whether the Notes may be surrendered for conversion in accordance with this clause (iv) and shall provide written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) if the Notes become convertible in accordance with this clause (iv). Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether the condition set forth in this clause (iv) has been met.
(iv) If the Company calls any or all of the Notes for redemption pursuant to Article 16 prior to the close of business on the Business Day immediately preceding August 15, 2029, then a Holder may surrender all or any part of such of its Notes as called for redemption for conversion at any time prior to the close of business on the second Scheduled Trading Day prior to the Redemption Date, even if the Notes are not otherwise convertible at such time. After that time, the right to convert such Notes pursuant to this Section 14.01(b)(v) shall expire, unless the Company defaults in the payment of the Redemption Price, in which case a Holder of Notes may convert its Notes until the Redemption Price has been paid or duly provided for.
Appears in 1 contract
Sources: Indenture (Aceto Corp)
Conversion Privilege. (a) Subject to and upon compliance with the provisions of this Article 14, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the Business Day immediately preceding August June 15, 2029 2026 under the circumstances and during the periods set forth in Section 14.01(b), and (ii) regardless of the conditions described in Section 14.01(b), on or after August June 15, 2029 2026 and prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 62.3539 16.6272 shares of Common Stock (subject to adjustment as provided in this Article 14, the “Conversion Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.02, the “Conversion Obligation”).
(ab) (i) Prior to the close of business on the Business Day immediately preceding August June 15, 20292026, a Holder may surrender all or any portion of its Notes for conversion at any time during the five Business Day period immediately after any five ten consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this subsection (b)(iSection 14.01(b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on each such Trading Day and the Conversion Rate on each such Trading Day. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this subsection (b)(iSection 14.01(b)(i) and the definition of Trading Price set forth in this Indenture. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes unless the Company has requested such determinationdetermination in writing and has provided the Bid Solicitation Agent with the names and contact information of the securities dealers the Company has selected for such purpose, and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes) unless a Holder of at least $1,000,000 aggregate principal amount of Notes requests in writing that the Company make such a determination and provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the Conversion Rate on such Trading DayRate, at which time the Company shall instruct three nationally recognized securities dealers to deliver bids and instruct the Bid Solicitation Agent in writing (if other than the Company) to determine, or if the Company is acting as Bid Solicitation Agent, the Company shall determine, determine the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Bid Solicitation Agent, or if the Company is acting as Bid Solicitation Agent, the Company, determines that the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion RateRate and the Company shall instruct the securities dealers that it has selected to provide bids to the Bid Solicitation Agent. At such time as the Company directs the Bid Solicitation Agent in writing to solicit bid quotations, the Company shall provide the Bid Solicitation Agent with the names and contact details of the three independent nationally recognized securities dealers selected by the Company, and the Company shall direct those security dealers to provide bids to the Bid Solicitation Agent. Any such determination will be conclusive absent manifest error. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not not, when the Company is required to, instruct the Bid Solicitation Agent to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentenceobtain bids, or if the Company so instructs the Bid Solicitation Agent to obtain bids and the Bid Solicitation Agent fails to make such determination, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, determination. then, in either case, the Trading Price per $1,000 principal amount of Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company shall so notify in writing the Holders, the Trustee and the Conversion Agent (if other than the Trustee)) in writing. If, at any time after the Trading Price condition set forth above has been met, the Bid Solicitation Agent, or if the Company is acting as Bid Solicitation Agent, the Company, determines that the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate for such date, the Company shall so notify in writing the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee).
(i) If, prior to the close of business on the Business Day immediately preceding August 15, 2029, the Company elects to:
(A) issue to all or substantially all holders of the Common Stock any rights, options or warrants (other than in connection with a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock) entitling them, for a period of not more than 45 calendar days after the announcement date of such issuance, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance; or
(B) distribute to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase securities of the Company (other than pursuant to a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock), which distribution has a per share value, as reasonably determined by the Board of Directors, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution, then, in either case, the Company shall notify in writing all Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) at least 30 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan, no later than the Business Day after the Company becomes aware that such separation has occurred or will occur); provided, however, that if the Company elects Physical Settlement (to the extent that the Company has not elected another Settlement Method to apply, including pursuant to Section 14.02) in the applicable notice in respect of any conversions that occurs from, and including, the date the Company provides such notice to, and including, the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or issuance (or, if earlier, the date the Company announces that such issuance or distribution will not take place) (the “Distribution Trigger Irrevocable Physical Settlement Period”), the Company shall be permitted to provide no less than 10 Scheduled Trading Days’ notice prior to the Ex-Dividend Date for the applicable issuance or distribution, in which case the Company shall be required to settle all conversions of Notes with a Conversion Date occurring during the Distribution Trigger Irrevocable Physical Settlement Period by Physical Settlement, and the Company shall describe the same in such notice. Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at any time until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take place, in each case, even if the Notes are not otherwise convertible at such time. Notwithstanding the foregoing, Holders may not convert their Notes under this Section 14.01(b)(ii) if they participate (other than in the case of a share split or share combination) at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described under this Section 14.01(b)(ii)(A) or (B) without having to convert their Notes as if they held a number of shares of Common Stock equal to the then-effective Conversion Rate multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. Neither the Trustee not the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether an issuance or distribution described in this clause (ii) has occurred.
(ii) If a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section 15.02, or if the Company is a party to a Share Exchange Event (other than a Share Exchange Event that is solely for the purpose of changing the Company’s jurisdiction of organization that does not constitute a Fundamental Change or Make-Whole Fundamental Change) that occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, in each case, pursuant to which the Common Stock would be converted into cash, securities or other assets, all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the effective date of the transaction until the earlier of (x) 35 Trading Days after the effective date of such transaction or, if such transaction also constitutes a Fundamental Change, until the close of business on the Business Day immediately preceding the related Fundamental Change Repurchase Date and (y) the second Scheduled Trading Day immediately preceding the Maturity Date. The Company shall notify in writing Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the effective date of such transaction. Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether a Fundamental Change or a Make-Whole Fundamental Change has occurred.
(iii) Prior to the close of business on the Business Day immediately preceding August 15, 2029, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar quarter commencing after the calendar quarter ending on March 31, 2025 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day. The Company shall determine at the beginning of each calendar quarter commencing after March 31, 2025 whether the Notes may be surrendered for conversion in accordance with this clause (iv) and shall provide written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) if in writing and thereafter neither the Notes become convertible in accordance with this clause (iv). Neither the Trustee Company nor the Conversion Bid Solicitation Agent shall have any duty to determine or verify (if other than the Company’s determination of whether the condition set forth in this clause (iv) has been met.
(iv) If the Company calls any or all of the Notes for redemption pursuant to Article 16 prior to the close of business on the Business Day immediately preceding August 15, 2029, then a Holder may surrender all or any part of such of its Notes as called for redemption for conversion at any time prior to the close of business on the second Scheduled Trading Day prior to the Redemption Date, even if the Notes are not otherwise convertible at such time. After that time, the right to convert such Notes pursuant to this Section 14.01(b)(v) shall expire, unless the Company defaults in the payment of the Redemption Price, in which case be required to solicit bids again until a Holder of Notes may convert its Notes until the Redemption Price has been paid or duly new holder request is made as provided forabove.
Appears in 1 contract
Conversion Privilege. (a) Subject to and upon compliance with the provisions of this Article 14, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the Business Day immediately preceding August March 15, 2029 under the circumstances and during the periods set forth in Section 14.01(b), and (ii) regardless of the conditions described in Section 14.01(b), on or after August March 15, 2029 and prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 62.3539 6.7476 shares of Common Stock (subject to adjustment as provided in this Article 14, the “Conversion Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.02, the “Conversion Obligation”).
(a) (i) Prior to the close of business on the Business Day immediately preceding August March 15, 2029, a Holder may surrender all or any portion of its Notes for conversion at any time during the five Business Day period immediately after any five ten consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this subsection (b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on each such Trading Day and the Conversion Rate on each such Trading Day. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this subsection (b)(i) and the definition of Trading Price set forth in this Indenture. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes unless the Company has requested such determination, and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes) unless a Holder or Holders of at least $1,000,000 2,000,000 in aggregate principal amount of Notes requests in writing that the Company make such a determination and provides aggregate provide(s) the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the Conversion Rate on such Trading Day, at which time the Company shall instruct three nationally recognized securities dealers to deliver bids and instruct the Bid Solicitation Agent (if other than the Company) in writing to determine, or if the Company is acting as Bid Solicitation Agent, the Company shall determine, the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not not, when the Company is required to, instruct the Bid Solicitation Agent to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentence, or if the Company instructs gives such instruction to the Bid Solicitation Agent to obtain bids and the Bid Solicitation Agent fails to make such determination, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, then, in either case, the Trading Price per $1,000 principal amount of Notes on any date shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company shall so notify in writing the Holders, the Trustee and the Conversion Agent (if other than the Trustee)) in writing. Any such determination shall be conclusive absent manifest error. If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate for such date, the Company shall so notify in writing the Holders of the NotesHolders, the Trustee and the Conversion Agent (if other than the Trustee) in writing and thereafter neither the Company nor the Bid Solicitation Agent (if other than the Company) shall be required to solicit bids (or determine the Trading Price of the Notes as set forth in this Indenture) again unless a new Holder request is made as provided in this subsection (b)(i). Neither the Trustee nor the Bid Solicitation Agent (if other than the Company) shall have any liability or responsibility for any Trading Price or related information or the accuracy thereof.
(iii) If, prior to the close of business on the Business Day immediately preceding August March 15, 2029, the Company elects to:
(A) issue distribute to all or substantially all holders of the Common Stock any rights, options or warrants (other than in connection with a stockholder rights plan so long as prior to the separation of such rights have not separated from the shares of the Common Stock) entitling them, for a period of not more than 45 60 calendar days after the announcement date of such issuancedistribution, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuancedistribution; or
(B) distribute to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase securities of the Company (other than pursuant to in connection with a stockholder rights plan so long as prior to separation of such rights have not separated from the shares of the Common Stock), which distribution has a per share value, as reasonably determined by the Board of DirectorsCompany in good faith, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution, then, in either case, the Company shall notify in writing all Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) in writing at least 30 28 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan, no later than the Business Day as soon as reasonably practicable after the Company becomes aware that such separation or triggering event has occurred or will occur); provided, however, that if the Company elects Physical Settlement (to the extent that the Company has not elected another Settlement Method to apply, including pursuant to Section 14.02) in the applicable notice in respect of any conversions that occurs from, and including, the date the Company provides such notice to, and including, the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or issuance (or, if earlier, the date the Company announces that such issuance or distribution will not take place) (the “Distribution Trigger Irrevocable Physical Settlement Period”), the Company shall be permitted to provide no less than 10 Scheduled Trading Days’ notice prior to the Ex-Dividend Date for the applicable issuance or distribution, in which case the Company shall be required to settle all conversions of Notes with a Conversion Date occurring during the Distribution Trigger Irrevocable Physical Settlement Period by Physical Settlement, and the Company shall describe the same in such notice. Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at any time until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take place, in each case, even if the Notes are not otherwise convertible at such time. Notwithstanding the foregoing, ; provided that Holders may not convert their Notes under pursuant to this Section 14.01(b)(iisubsection (b)(ii) if they participate (other than in the case of a share split or share combination) participate, at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described under this Section 14.01(b)(ii)(Ain clause (A) or (B) of this subsection (b)(ii) without having to convert their Notes as if they held a number of shares of Common Stock equal to the then-effective Conversion Rate Rate, multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. Neither the Trustee not the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether an issuance or distribution described in this clause (ii) has occurred.
(iiiii) If (A) a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close of business on the Business Day immediately preceding August March 15, 2029, regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section 15.02, or (B) if the Company is a party to a Share Exchange Event (other than a Share Exchange Event that is solely for the purpose of changing the Company’s jurisdiction of organization that (x) does not constitute a Fundamental Change or a Make-Whole Fundamental ChangeChange and (y) results in a reclassification, conversion or exchange of outstanding shares of Common Stock solely into shares of common stock of the surviving entity and such common stock becomes Reference Property for the Notes) that occurs prior to the close of business on the Business Day immediately preceding August March 15, 2029, in (each casesuch Fundamental Change, pursuant to which the Common Stock would be converted into cashMake-Whole Fundamental Change or Share Exchange Event, securities or other assetsa “Corporate Event”), all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the effective date of the transaction such Corporate Event until the earlier of (x) 35 Trading Days after the effective date of the Corporate Event (or, if the Company gives notice after the effective date of such transaction Corporate Event, until 35 Trading Days after the date the Company gives notice of such Corporate Event) or, if such transaction Corporate Event also constitutes a Fundamental Change (other than an Exempted Fundamental Change), until the close of business on the Business Day immediately preceding the related Fundamental Change Repurchase Date and (y) the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date. The Company shall notify in writing Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than in writing as promptly as practicable following the effective date of such transaction. Neither Corporate Event, but in no event later than one Business Day after the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination effective date of whether a Fundamental Change or a Make-Whole Fundamental Change has occurredsuch Corporate Event.
(iiiiv) Prior to the close of business on the Business Day immediately preceding August March 15, 2029, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar quarter commencing after the calendar quarter ending on March 31, 2025 2026 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day. The Company shall determine at the beginning of each calendar quarter commencing after March 31, 2025 2026 whether the Notes may be surrendered for conversion in accordance with this clause (iv) and shall provide written notice to notify the Holders, the Trustee and the Conversion Agent (if other than the Trustee) if the Notes become convertible in accordance with this clause (iv). Neither the Trustee nor the Conversion Agent (if other than the Trustee) shall have any duty to determine or verify such determination by the Company’s Company pursuant to this clause (iv) or any similar determination of whether by the Company that the Notes have become convertible in accordance with any condition set forth in this clause (iv) has been metSection 14.01(b).
(ivv) If the Company calls any or all of the Notes for redemption pursuant to Article 16 prior to the close of business on the Business Day immediately preceding August 15, 202916, then a Holder may surrender all or any part of such portion of its Called Notes as called for redemption for conversion at any time prior to the close of business on the second Scheduled Trading Day prior to immediately preceding the Redemption Date, even if the Called Notes are not otherwise convertible at such time. After that time, the right to convert such Called Notes pursuant to this Section 14.01(b)(v) on account of the Company’s delivery of a Notice of Redemption shall expire, unless the Company defaults in the payment of the Redemption Price, in which case a Holder of Called Notes may convert all or a portion of its Called Notes until the Redemption Price has been paid or duly provided for.. If the Company elects to redeem fewer than all of the outstanding Notes for redemption pursuant to Article 16, and the Holder of any Note (or any owner of
Appears in 1 contract
Sources: Indenture (Zoetis Inc.)
Conversion Privilege. (a) Subject to and upon compliance with the provisions of this Article Article 14, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral a multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section Section 14.01(b), at any time prior to the close of business on the Business Day immediately preceding August 15December 1, 2029 2024 under the circumstances and during the periods set forth in Section Section 14.01(b), and (ii) regardless of the conditions described in Section Section 14.01(b), on or after August 15December 1, 2029 2024 and prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 62.3539 198.6196 shares of Common Stock (subject to adjustment as provided in this Article Article 14, the “Conversion Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section Section 14.02, the “Conversion Obligation”).
(ab) (i) Prior to the close of business on the Business Day immediately preceding August 15December 1, 20292024, a Holder may surrender all or any portion of its Notes for conversion at any time during the five Business Day period immediately after any five consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this subsection (b)(iSection 14.01(b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on each such Trading Day and the Conversion Rate on each such Trading DayDay (the “Trading Price Condition”). The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this subsection (b)(iSection 14.01(b)(i) and the definition of Trading Price set forth in this Indenture. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes solicit bids as described above unless the Company has requested such determinationsolicitation in writing, and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000 principal amount of Notessolicit such bids) unless a Holder of at least $1,000,000 2,000,000 aggregate principal amount of Notes requests in writing that the Company make such a determination and provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the Conversion Rate on such Trading DayRate, at which time the Company shall instruct three nationally recognized securities dealers to deliver bids and instruct the Bid Solicitation Agent in writing (if other than the Company) to determinesolicit, or if the Company is acting as Bid Solicitation Agent, the Company shall determine, the Trading Price per $1,000 principal amount of Notes solicit such bids beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion RateRate and the Company shall instruct the three independent nationally recognized securities dealers to deliver bids to the Bid Solicitation Agent. The Company shall determine the Trading Price per $1,000 principal amount of the Notes for each Trading Day in accordance with the bids so solicited. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not not, when the Company is required to, instruct the Bid Solicitation Agent in writing to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentenceobtain bids, or if the Company so instructs the Bid Solicitation Agent in writing to obtain bids and the Bid Solicitation Agent fails to make obtain such determinationbids, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make obtain such determination when obligated as provided in the preceding sentencebids, then, in either case, the Trading Price per $1,000 principal amount of Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate on each Trading Day of such failure. At such time as the Company directs the Bid Solicitation Agent (if other than the Company) in writing to solicit bid quotations, the Company shall provide the Bid Solicitation Agent (if other than the Company) with the names and contact details of the three independent nationally recognized securities dealers selected by the Company and the Company shall direct these securities dealers to provide bids to the Bid Solicitation Agent. If the Trading Price condition set forth above has been met, the Company shall so notify in writing the Holders, the Trustee and the Conversion Agent (if other than the Trustee)) in writing on or within one Business Day of such determination. If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate for such dateTrading Day, the Company shall so notify in writing the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee).
(i) If, prior to the close of business on the Business Day immediately preceding August 15, 2029, the Company elects to:
(A) issue to all or substantially all holders of the Common Stock any rights, options or warrants (other than in connection with a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock) entitling them, for a period of not more than 45 calendar days after the announcement date of such issuance, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance; or
(B) distribute to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase securities of the Company (other than pursuant to a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock), which distribution has a per share value, as reasonably determined by the Board of Directors, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution, then, in either case, the Company shall notify in writing all Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) at least 30 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan, no later than the Business Day after the Company becomes aware that such separation has occurred or will occur); provided, however, that if the Company elects Physical Settlement (to the extent that the Company has not elected another Settlement Method to apply, including pursuant to Section 14.02) in the applicable notice in respect of any conversions that occurs from, and including, the date the Company provides such notice to, and including, the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or issuance (or, if earlier, the date the Company announces that such issuance or distribution will not take place) (the “Distribution Trigger Irrevocable Physical Settlement Period”), the Company shall be permitted to provide no less than 10 Scheduled Trading Days’ notice prior to the Ex-Dividend Date for the applicable issuance or distribution, in which case the Company shall be required to settle all conversions of Notes with a Conversion Date occurring during the Distribution Trigger Irrevocable Physical Settlement Period by Physical Settlement, and the Company shall describe the same in such notice. Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at any time until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take place, in each case, even if the Notes are not otherwise convertible at such time. Notwithstanding the foregoing, Holders may not convert their Notes under this Section 14.01(b)(ii) if they participate (other than in the case of a share split or share combination) at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described under this Section 14.01(b)(ii)(A) or (B) without having to convert their Notes as if they held a number of shares of Common Stock equal to the then-effective Conversion Rate multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. Neither the Trustee not the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether an issuance or distribution described in this clause (ii) has occurred.
(ii) If a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section 15.02, or if the Company is a party to a Share Exchange Event (other than a Share Exchange Event that is solely for the purpose of changing the Company’s jurisdiction of organization that does not constitute a Fundamental Change or Make-Whole Fundamental Change) that occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, in each case, pursuant to which the Common Stock would be converted into cash, securities or other assets, all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the effective date of the transaction until the earlier of (x) 35 Trading Days after the effective date of such transaction or, if such transaction also constitutes a Fundamental Change, until the close of business on the Business Day immediately preceding the related Fundamental Change Repurchase Date and (y) the second Scheduled Trading Day immediately preceding the Maturity Date. The Company shall notify in writing Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the effective date of such transaction. Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether a Fundamental Change or a Make-Whole Fundamental Change has occurred.
(iii) Prior to the close of business on the Business Day immediately preceding August 15, 2029, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar quarter commencing after the calendar quarter ending on March 31, 2025 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day. The Company shall determine at the beginning of each calendar quarter commencing after March 31, 2025 whether the Notes may be surrendered for conversion in accordance with this clause (iv) and shall provide written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) if in writing that the Notes become convertible in accordance with this clause (iv). Neither Trading Price Condition is no longer met and thereafter neither the Trustee Company nor the Conversion Bid Solicitation Agent shall have any duty to determine or verify (if other than the Company’s determination of whether the condition set forth in this clause (iv) has been met.
(iv) If the Company calls any or all of the Notes for redemption pursuant to Article 16 prior to the close of business on the Business Day immediately preceding August 15, 2029, then a Holder may surrender all or any part of such of its Notes as called for redemption for conversion at any time prior to the close of business on the second Scheduled Trading Day prior to the Redemption Date, even if the Notes are not otherwise convertible at such time. After that time, the right to convert such Notes pursuant to this Section 14.01(b)(v) shall expire, unless the Company defaults in the payment of the Redemption Price, in which case a Holder of Notes may convert its Notes be required to solicit bids again until the Redemption Price has been paid or duly another qualifying request is made as provided forabove.
Appears in 1 contract
Sources: Indenture (Plug Power Inc)
Conversion Privilege. (a) Subject to and upon compliance with the provisions of this Article 14, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the Business Day immediately preceding August October 15, 2029 2024 under the circumstances and during the periods set forth in Section 14.01(b), and (ii) regardless of the conditions described in Section 14.01(b), on or after August October 15, 2029 2024 and prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 62.3539 32.6797 shares of Common Stock (subject to adjustment as provided in this Article 14, the “Conversion Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.02, the “Conversion Obligation”).
(ab) (i) Prior to the close of business on the Business Day immediately preceding August October 15, 20292024, a Holder may surrender all or any portion of its Notes for conversion at any time during the five Business Day period immediately after any five consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this subsection (b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on each such Trading Day and the Conversion Rate on each such Trading Day. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this subsection (b)(i) and the definition of Trading Price set forth in this Indenture. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes unless the Company has requested such determination, and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes) unless a Holder one or more Holders of at least $1,000,000 aggregate 3,000,000 principal amount of Notes requests in writing that the Company make such a determination and aggregate provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the Conversion Rate on such Trading Day, at which time the Company shall instruct three nationally recognized securities dealers to deliver bids and instruct the Bid Solicitation Agent (if other than the Company) to determine, or if the Company is acting as Bid Solicitation Agent, the Company shall determine, the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not not, when the Company is required to, instruct the Bid Solicitation Agent to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentence, or if the Company instructs the Bid Solicitation Agent to obtain bids and the Bid Solicitation Agent fails to make such determination, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, then, in either case, the Trading Price per $1,000 principal amount of Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company shall so notify in writing the Holders, the Trustee and the Conversion Agent (if other than the Trustee). If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate for such date, the Company shall so notify in writing the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee).
(i) If, prior to the close of business on the Business Day immediately preceding August 15, 2029, and thereafter neither the Company elects to:
(A) issue to all or substantially all holders of nor the Common Stock any rights, options or warrants (other than in connection with a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock) entitling them, for a period of not more than 45 calendar days after the announcement date of such issuance, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance; or
(B) distribute to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase securities of the Company (other than pursuant to a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock), which distribution has a per share value, as reasonably determined by the Board of Directors, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution, then, in either case, the Company shall notify in writing all Holders of the Notes, the Trustee and the Conversion Bid Solicitation Agent (if other than the TrusteeCompany) at least 30 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan, no later than the Business Day after the Company becomes aware that such separation has occurred or will occur); provided, however, that if the Company elects Physical Settlement (to the extent that the Company has not elected another Settlement Method to apply, including pursuant to Section 14.02) in the applicable notice in respect of any conversions that occurs from, and including, the date the Company provides such notice to, and including, the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or issuance (or, if earlier, the date the Company announces that such issuance or distribution will not take place) (the “Distribution Trigger Irrevocable Physical Settlement Period”), the Company shall be permitted to provide no less than 10 Scheduled Trading Days’ notice prior to the Ex-Dividend Date for the applicable issuance or distribution, in which case the Company shall be required to settle all conversions of Notes with a Conversion Date occurring during solicit bids (or determine the Distribution Trigger Irrevocable Physical Settlement Period by Physical Settlement, and the Company shall describe the same in such notice. Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at any time until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take place, in each case, even if the Notes are not otherwise convertible at such time. Notwithstanding the foregoing, Holders may not convert their Notes under this Section 14.01(b)(ii) if they participate (other than in the case of a share split or share combination) at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described under this Section 14.01(b)(ii)(A) or (B) without having to convert their Notes as if they held a number of shares of Common Stock equal to the then-effective Conversion Rate multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. Neither the Trustee not the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether an issuance or distribution described in this clause (ii) has occurred.
(ii) If a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section 15.02, or if the Company is a party to a Share Exchange Event (other than a Share Exchange Event that is solely for the purpose of changing the Company’s jurisdiction of organization that does not constitute a Fundamental Change or Make-Whole Fundamental Change) that occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, in each case, pursuant to which the Common Stock would be converted into cash, securities or other assets, all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the effective date of the transaction until the earlier of (x) 35 Trading Days after the effective date of such transaction or, if such transaction also constitutes a Fundamental Change, until the close of business on the Business Day immediately preceding the related Fundamental Change Repurchase Date and (y) the second Scheduled Trading Day immediately preceding the Maturity Date. The Company shall notify in writing Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the effective date of such transaction. Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether a Fundamental Change or a Make-Whole Fundamental Change has occurred.
(iii) Prior to the close of business on the Business Day immediately preceding August 15, 2029, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar quarter commencing after the calendar quarter ending on March 31, 2025 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day. The Company shall determine at the beginning of each calendar quarter commencing after March 31, 2025 whether the Notes may be surrendered for conversion in accordance with this clause (iv) and shall provide written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) if the Notes become convertible in accordance with this clause (iv). Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether the condition as set forth in this clause Indenture) again until a new Holder request is made as provided in this subsection (iv) has been metb)(i).
(iv) If the Company calls any or all of the Notes for redemption pursuant to Article 16 prior to the close of business on the Business Day immediately preceding August 15, 2029, then a Holder may surrender all or any part of such of its Notes as called for redemption for conversion at any time prior to the close of business on the second Scheduled Trading Day prior to the Redemption Date, even if the Notes are not otherwise convertible at such time. After that time, the right to convert such Notes pursuant to this Section 14.01(b)(v) shall expire, unless the Company defaults in the payment of the Redemption Price, in which case a Holder of Notes may convert its Notes until the Redemption Price has been paid or duly provided for.
Appears in 1 contract
Sources: Indenture (Health Catalyst, Inc.)
Conversion Privilege. (a) Subject to and upon compliance with the provisions of this Article 14, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the Business Day immediately preceding August July 15, 2029 2030 under the circumstances and during the periods set forth in Section 14.01(b), and (ii) regardless of the conditions described in Section 14.01(b), on or after August July 15, 2029 2030 and prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 62.3539 83.6715 shares of Common Stock (subject to adjustment as provided in this Article 14, the “Conversion Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.02, the “Conversion Obligation”). As provided for in Section 14.09, the Trustee shall have no obligation to make any determination as to whether any of the conditions described in Section 14.01(b) have been satisfied that makes the Notes eligible for conversion or no longer eligible therefor unless and until the Company delivers the related notices referred to in Section 14.01(b).
(a) (i) Prior to the close of business on the Business Day immediately preceding August July 15, 20292030, a Holder may surrender all or any portion of its Notes for conversion at any time during the five Business Day period immediately after any five consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined by the Bid Solicitation Agent following a request by a Holder or Holders of Notes in accordance with this subsection (b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on each such Trading Day and the Conversion Rate on each such Trading Day. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this subsection (b)(i) and the definition of Trading Price set forth in this Indenture. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes unless the Company has requested in writing such determinationdetermination and provided in writing the names and contact information of the three independent nationally recognized securities dealers selected by the Company to provide bids to determine the Trading Price, and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes) unless a Holder or Holders of at least $1,000,000 5,000,000 aggregate principal amount of Notes requests in writing that the Company make such a determination and provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the Conversion Rate on such Trading Day, at which time the Company shall instruct three independent nationally recognized securities dealers to deliver bids and instruct the Bid Solicitation Agent (if other than the Company) to determine, or if the Company is acting as Bid Solicitation Agent, the Company shall determine, the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate. If the Company is not acting as Bid Solicitation Agent, the Company shall identify in writing to the Bid Solicitation Agent the three independent nationally recognized securities dealers selected by the Company to provide bids to determine the Trading Price and the contact information for each. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not not, when the Company is required to, instruct the Bid Solicitation Agent to obtain bids or identify in writing to the Bid Solicitation Agent the three independent nationally recognized securities dealers selected by the Company to provide bids to determine the Trading Price per $1,000 principal amount of Notes and the contact information for each, when obligated as provided in the preceding sentence, or if the Company instructs gives such instruction to the Bid Solicitation Agent to obtain bids and the Bid Solicitation Agent fails to make such determination, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, then, in either case, the Trading Price per $1,000 principal amount of Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company shall so notify in writing the Holders, the Trustee and the Conversion Agent (if other than the Trustee)) in writing. Any such determination shall be conclusive absent manifest error. If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate for such date, the Company shall so notify in writing the Holders of the NotesHolders, the Trustee and the Conversion Agent (if other than the Trustee) in writing and thereafter neither the Company nor the Bid Solicitation Agent (if other than the Company) shall be required to solicit bids (or determine the Trading Price of the Notes as set forth in this Indenture) again unless a new Holder request is made as provided in this subsection (b)(i).
(iii) If, prior to the close of business on the Business Day immediately preceding August July 15, 20292030, the Company elects to:
(A) issue distribute to all or substantially all holders of the Common Stock any rights, options or warrants (other than in connection with a stockholder rights plan so long as prior to the separation of such rights have not separated from the shares of the Common Stock) entitling them, for a period of not more than 45 60 calendar days after the announcement date of such issuancedistribution, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuancedistribution; or
(B) distribute to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase securities of the Company (other than pursuant to in connection with a stockholder rights plan so long as prior to separation of such rights have not separated from the shares of the Common Stock), which distribution has a per share value, as reasonably determined by the Board of DirectorsCompany in good faith, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution, then, in either case, the Company shall notify in writing all Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) in writing at least 30 38 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan, no later than the Business Day as soon as reasonably practicable after the Company becomes aware that such separation or triggering event has occurred or will occur); provided, however, that if the Company elects is then otherwise permitted to settle conversions of Notes by Physical Settlement (to and, for the extent that the Company avoidance of doubt, has not irrevocably elected another Settlement Method to applyfor conversions of Notes), including pursuant to Section 14.02) in the applicable notice in respect of any conversions that occurs from, and including, the date then the Company provides may instead elect to provide such notice to, and including, the close of business on the Business Day immediately preceding the at least five Scheduled Trading Days prior to such Ex-Dividend Date for such distribution or issuance (or, if earlier, the date the Company announces that such issuance or distribution will not take place) (the “Distribution Trigger Irrevocable Physical Settlement Period”), the Company shall be permitted to provide no less than 10 Scheduled Trading Days’ notice prior to the Ex-Dividend Date for the applicable issuance or distributionDate, in which case the Company shall be required to settle all conversions of Notes with a Conversion Date occurring during the Distribution Trigger Irrevocable Physical Settlement Period period on or after the date the Company provides such notice and before such Ex-Dividend Date (or, if earlier, the date the Company announces that such issuance or distribution will not take place) by Physical Settlement, and the Company shall describe the same in such notice. Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at any time until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take placeplace (or, if later, in the case of a separation of rights issued pursuant to a stockholder rights plan, until the 20th Trading Day following the date of such notice), in each case, even if the Notes are not otherwise convertible at such time. Notwithstanding the foregoing, Holders ; provided that a Holder may not convert their its Notes under pursuant to this Section 14.01(b)(iisubsection (b)(ii) if they participate (other than in the case of a share split or share combination) it participates, at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described under this Section 14.01(b)(ii)(Ain clause (A) or (B) of this subsection (b)(ii) without having to convert their its Notes as if they it held a number of shares of Common Stock equal to the then-effective Conversion Rate multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. Neither the Trustee not the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether an issuance or distribution described in this clause (ii) has occurred.
(iiiii) If (A) a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close of business on the Business Day immediately preceding August July 15, 20292030, regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section 15.02, or (B) if the Company is a party to a Share Exchange Event (other than a Share Exchange Event that is solely for the purpose of changing the Company’s jurisdiction of organization that (x) does not constitute a Fundamental Change or a Make-Whole Fundamental ChangeChange and (y) results in a reclassification, conversion or exchange of outstanding shares of Common Stock solely into shares of common stock of the surviving entity and such common stock becomes Reference Property for the Notes) that occurs prior to the close of business on the Business Day immediately preceding August July 15, 20292030, in (each casesuch Fundamental Change, pursuant to which the Common Stock would be converted into cashMake-Whole Fundamental Change or Share Exchange Event, securities or other assetsa “Corporate Event”), all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the effective date of the transaction such Corporate Event until the earlier of (x) 35 Trading Days after the effective date of the Corporate Event (or, if the Company gives notice after the effective date of such transaction Corporate Event, until 35 Trading Days after the date the Company gives notice of such Corporate Event) or, if such transaction Corporate Event also constitutes a Fundamental Change (other than an Exempted Fundamental Change), until the close of business on the Business Day immediately preceding the related Fundamental Change Repurchase Date and (y) the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date. The Company shall notify in writing Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than in writing as promptly as practicable following the effective date of such transaction. Neither Corporate Event, but in no event later than one Business Day after the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination effective date of whether a Fundamental Change or a Make-Whole Fundamental Change has occurredsuch Corporate Event.
(iiiiv) Prior to the close of business on the Business Day immediately preceding August July 15, 20292030, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar fiscal quarter commencing after the calendar fiscal quarter ending on March January 31, 2025 2026 (and only during such calendar fiscal quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar fiscal quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day. The Company shall determine at the beginning of each calendar quarter commencing after March 31, 2025 whether the Notes may be surrendered for conversion in accordance with this clause .
(ivv) and shall provide written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) if the Notes become convertible in accordance with this clause (iv). Neither the Trustee nor the Conversion Agent shall have any duty obligation to make any calculation or to determine whether the Notes may be surrendered for conversion or verify to notify the Company’s determination of whether , the condition set forth in this clause (iv) has been metDepositary or any Holders if the Notes have become convertible.
(ivvi) If the Company calls any or all of the Notes for redemption Optional Redemption pursuant to Article 16 prior to the close of business on the Business Day immediately preceding August 15, 202916, then a Holder may surrender all or any part of such portion of its Called Notes as called for redemption for conversion at any time prior during the relevant Redemption Period, even if the Called Notes are not otherwise convertible at such time. If the Company makes an All Notes Election with respect to a Partial Redemption pursuant to Section 16.02(d), Holders of all outstanding Notes may convert their Notes pursuant to this Section 14.01(b)(v) at any time during the close relevant Redemption Period, irrespective of business on the second Scheduled Trading Day prior to the Redemption Date, whether such Notes are Called Notes and even if the Notes are not otherwise convertible at such time. After that timeFollowing the relevant Redemption Period, the right to convert such Notes on account of the Company’s delivery of a Notice of Redemption pursuant to the two immediately preceding sentences shall expire. In the event of a Partial Redemption where the Company does not make an All Notes Election with respect to such Partial Redemption pursuant to Section 16.02(d), if the Holder of any Note (or any owner of a beneficial interest in any Global Note) is reasonably not able to determine, prior to the close of business on the 34th Scheduled Trading Day immediately preceding the relevant Redemption Date (or if, as permitted by Section 16.02(a), the Company delivers a Notice of Redemption not less than 15 calendar days nor more than 55 Scheduled Trading Days prior to the related Redemption Date, then prior to close of business on the 14th calendar day immediately before the relevant Redemption Date), whether such Note or beneficial interest, as applicable, is to be redeemed pursuant to such Partial Redemption (and, as a result thereof, convertible pursuant to this Section 14.01(b)(vi)), then such Holder or owner, as applicable, will be entitled to convert such Note or beneficial interest, as applicable, at any time during the relevant Redemption Period, and each such conversion will be deemed to be of a Note called for Optional Redemption, and such Note or beneficial interest will be deemed called for Optional Redemption solely for the purposes of such conversion (“Deemed Redemption”). The Trustee shall have no obligation to make any determination in connection with the Deemed Redemption. If a Holder elects to convert its Notes pursuant to this Section 14.01(b)(vi) during the related Redemption Period, the Company will, under certain circumstances, increase the Conversion Rate for such Notes that are so converted in connection with such Notice of Redemption pursuant to Section 14.03. Accordingly, in the case of a Partial Redemption where the Company does not make an All Notes Election with respect to such Partial Redemption pursuant to Section 16.02(d), Holders of the Notes that are not Called Notes shall not be entitled to convert such Notes pursuant to this Section 14.01(b)(v14.01(b)(vi) and shall expire, unless the Company defaults not be entitled to an increase in the payment Conversion Rate for conversions of such Notes during the related Redemption PricePeriod pursuant to Section 14.03, in which case a Holder even if such Notes are otherwise convertible pursuant to any other provision of Notes may convert its Notes until the Redemption Price has been paid or duly provided forthis Section 14.01(b).
Appears in 1 contract
Sources: Indenture (Planet Labs PBC)
Conversion Privilege. (a) Subject to and upon compliance with the provisions of this Article 14XIII, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b13.01(b), at any time prior to the close of business on the Business Day immediately preceding August 151, 2029 2027 under the circumstances and during the periods set forth in Section 14.01(b13.01(b), and (ii) regardless of the conditions described in Section 14.01(b13.01(b), on or after August 151, 2029 2027 and prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 62.3539 3.3430 shares of Common Stock (subject to adjustment as provided in this Article 14XIII, the “Conversion Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.0213.02, the “Conversion Obligation”).
(a) (i) Prior to the close of business on the Business Day immediately preceding August 151, 20292027, a Holder may surrender all or any portion of its Notes for conversion at any time during the five Business Day period immediately after any five consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this subsection (b)(iSection 13.01(b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on each such Trading Day and the Conversion Rate on each such Trading Day. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant shall have no obligation to this subsection (b)(i) and determine the definition of Trading Price set forth in this IndenturePrice. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each, and shall direct such securities dealers to provide the required information to the Bid Solicitation Agent, who shall deliver such bid quotations to the Company. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes unless the Company has requested such determinationdetermination in writing, and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes) unless a Holder of at least $1,000,000 aggregate principal amount of Notes requests in writing that the Company make such a determination and provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the Conversion Rate on such Trading DayRate, at which time the Company shall instruct three nationally recognized securities dealers to deliver bids and instruct the Bid Solicitation Agent (if other than the Company) to determine, or if the Company is acting as Bid Solicitation Agent, the Company shall determine, determine the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not instruct the Bid Solicitation Agent to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentence, or if the Company instructs the Bid Solicitation Agent to obtain bids and the Bid Solicitation Agent fails to make obtain such determinationbids, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, then, in either case, the Trading Price per $1,000 principal amount of Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company shall so notify in writing the Holders, the Trustee Trustee, and the Conversion Agent (if other than the Trustee)) in writing. If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate for such date, the Company shall so notify in writing the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee)) in writing. None of the Trustee, the Bid Solicitation Agent or the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether the Trading Price Condition set forth above has been met.
(iii) If, prior to the close of business on the Business Day immediately preceding August 151, 20292027, the Company elects to:
(A) issue to all or substantially all holders of the Common Stock any rights, options options, or warrants (other than in connection with a stockholder rights plan so long as such rights have not separated from the shares of the Common Stockplan) entitling them, for a period of not more than 45 calendar days after the announcement declaration date of for such issuance, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the declaration date of announcement of for such issuance; or
(B) distribute to all or substantially all holders of the Common Stock the Company’s assets, securities securities, or rights to purchase securities of the Company (other than pursuant to a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock)Company, which distribution has a per share value, as reasonably determined by the Board of Directors, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day immediately preceding the declaration date of announcement for such distribution, then, in either case, the Company shall notify in writing all Holders of the Notes, the Trustee Trustee, and the Conversion Agent (if other than the Trustee) in writing at least 30 40 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan, no later than the Business Day after the Company becomes aware that such separation has occurred or will occur); provided, however, that if the Company elects Physical Settlement (to the extent that the Company has not elected another Settlement Method to apply, including pursuant to Section 14.02) in the applicable notice in respect of any conversions that occurs from, and including, the date the Company provides such notice to, and including, the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or issuance (or, if earlier, the date the Company announces that such issuance or distribution will not take place) (the “Distribution Trigger Irrevocable Physical Settlement Period”), the Company shall be permitted to provide no less than 10 Scheduled Trading Days’ notice prior to the Ex-Dividend Date for the applicable issuance or distribution, in which case the Company shall be required to settle all conversions of Notes with a Conversion Date occurring during the Distribution Trigger Irrevocable Physical Settlement Period by Physical Settlement, and the Company shall describe the same in such notice. Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at any time until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take place, in each case, even if the Notes are not otherwise convertible at such time. Notwithstanding Holders of the foregoing, Holders Notes may not convert their Notes under exercise this Section 14.01(b)(ii) right if they participate (other than in the case of a share split or share combination) ), at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described under this Section 14.01(b)(ii)(A) or (B) above without having to convert their Notes as if they held a number of shares of Common Stock equal to the then-effective applicable Conversion Rate multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. Neither None of the Trustee not Trustee, the Bid Solicitation Agent or the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether an issuance or distribution described in this clause (ii) has occurred.
(iiiii) If (i) a transaction or event that constitutes (x) a Fundamental Change or (y) a Make-Whole Fundamental Change occurs prior to the close of business on the Business Day immediately preceding August 151, 20292027, regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section 15.0214.02, or (ii) if the Company is a party to a Share Exchange Event consolidation, merger, combination, statutory share exchange, or sale, lease, or other transfer to a third party of all or substantially all of its and its Subsidiaries’ consolidated assets, taken as a whole (other than a Share Exchange Event that is merger effected solely for the purpose of changing to change the Company’s jurisdiction of organization incorporation that does not otherwise constitute a Fundamental Change or Make-Whole Fundamental Change) that occurs ), prior to the close of business on the Business Day immediately preceding August 151, 2029, in each case2027, pursuant to which the Common Stock would be converted into cashshares of stock, securities other securities, or other assetsproperty or assets (including cash or any combination thereof), then, in each case, all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the effective date of the transaction until the earlier of (x) 35 Trading Days after the effective date of such transaction or event until the 35th Trading Day after the effective date of such transaction or event or, if such transaction or event also constitutes a Fundamental Change, until the close of business on the Business Day immediately preceding the related Fundamental Change Repurchase Date and (y) the second Scheduled Trading Day immediately preceding the Maturity Date. The Company shall notify in writing Holders, the Trustee Trustee, and the Conversion Agent (if other than the Trustee) in writing within one Business Day of the date the Company publicly announces such transaction or event, and in no event later than the effective date of such transactiontransaction or event. Neither None of the Trustee nor Trustee, the Bid Solicitation Agent or the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether a Fundamental Change or a Make-Whole Fundamental Change has occurred.
(iiiiv) Prior to the close of business on the Business Day immediately preceding August 151, 20292027, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar quarter commencing after the calendar quarter ending on March 31, 2025 2021 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, on the last Trading Day of the immediately preceding calendar quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day, as determined by the Company. The Company shall determine at the beginning of each calendar quarter commencing after March 31, 2025 2021 whether the Notes may be surrendered for conversion in accordance with this clause (iv) and shall provide written notice to the Holders, notify the Trustee and the Conversion Agent (if other than the Trustee) if the Notes become convertible in accordance with this clause (iv). Neither None of the Trustee nor Trustee, the Bid Solicitation Agent or the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether the condition set forth in this clause (iv) has been metoccurred.
(ivv) If the Company calls any or all of the Notes Note for redemption Optional Redemption pursuant to Article 16 XV prior to the close of business on the Business Day immediately preceding August 15, 2029Maturity Date, then a Holder of such Note called for Optional Redemption may surrender all or any part portion of such of its Notes as called for redemption Note for conversion at any time prior to the close of business on the second Scheduled Trading Day prior to the Redemption DateDate on account of the Company’s delivery of a Redemption Notice, even if the Notes are Note is not otherwise convertible at such time. After that time, the right to convert such Notes pursuant to this Section 14.01(b)(v) Note on account of the Company’s delivery of a Redemption Notice shall expire, unless the Company defaults in the payment of the Redemption Price, in which case a Holder of Notes the Note called for Optional Redemption may convert its Notes such Note (or any portion thereof) until the close of business on the Business Day immediately preceding the date on which the Redemption Price has been paid or duly provided for. If the Company elects to redeem less than all of the outstanding Notes and the Holder of any Note (or any owner of a beneficial interest in any Global Note) is reasonably not able to determine, before the close of business on the 34th Scheduled Trading Day immediately before the relevant Redemption Date, whether such Note or beneficial interest, as applicable, is to be redeemed pursuant to such Optional Redemption, then such Holder or owner, as applicable, will be entitled to convert such Note or beneficial interest, as applicable, at any time before the close of business on the Scheduled Trading Day prior to such Redemption Date, unless the Company defaults in the payment of the Redemption Price, in which case such Holder or owner, as applicable, will be entitled to convert such Note or beneficial interest, as applicable, until the close of business on the Business Day immediately preceding the date on which the Redemption Price has been paid or duly provided for, and each such conversion will be deemed to be of a Note called for Optional Redemption.
Appears in 1 contract
Sources: Indenture (Square, Inc.)
Conversion Privilege. (a) Subject to and upon compliance with the provisions of this Article 14, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the Business Day immediately preceding August March 15, 2029 2026 under the circumstances and during the periods set forth in Section 14.01(b), and (ii) regardless of the conditions described in Section 14.01(b), on or after August March 15, 2029 2026 and prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 62.3539 25.3405 shares of Common Stock (subject to adjustment as provided in this Article 14, the “Conversion Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.02, the “Conversion Obligation”).
(ab) (i) Prior to the close of business on the Business Day immediately preceding August March 15, 20292026, a Holder may surrender all or any portion of its Notes for conversion at any time during the five Business Day period immediately after any five consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this subsection (b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on each such Trading Day and the Conversion Rate on each such Trading Day. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this subsection (b)(i) and the definition of Trading Price set forth in this Indenture. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes unless the Company has requested such determination, and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes) unless a Holder of at least $1,000,000 aggregate principal amount of Notes requests in writing that the Company make such a determination and provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the Conversion Rate on such Trading Day, at which time the Company shall instruct three nationally recognized securities dealers to deliver bids and instruct the Bid Solicitation Agent (if other than the Company) to determine, or if the Company is acting as Bid Solicitation Agent, the Company shall determine, the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not instruct the Bid Solicitation Agent to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentence, or if the Company instructs the Bid Solicitation Agent to obtain bids and the Bid Solicitation Agent fails to make such determination, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, then, in either case, the Trading Price per $1,000 principal amount of Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company shall so notify in writing the Holders, the Trustee and the Conversion Agent (if other than the Trustee). If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate for such date, the Company shall so notify in writing the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee).
(i) If, prior to the close of business on the Business Day immediately preceding August 15, 2029, the Company elects to:
(A) issue to all or substantially all holders of the Common Stock any rights, options or warrants (other than in connection with a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock) entitling them, for a period of not more than 45 calendar days after the announcement date of such issuance, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance; or
(B) distribute to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase securities of the Company (other than pursuant to a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock), which distribution has a per share value, as reasonably determined by the Board of Directors, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution, then, in either case, the Company shall notify in writing all Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) at least 30 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan, no later than the Business Day after the Company becomes aware that such separation has occurred or will occur); provided, however, that if the Company elects Physical Settlement (to the extent that the Company has not elected another Settlement Method to apply, including pursuant to Section 14.02) in the applicable notice in respect of any conversions that occurs from, and including, the date the Company provides such notice to, and including, the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or issuance (or, if earlier, the date the Company announces that such issuance or distribution will not take place) (the “Distribution Trigger Irrevocable Physical Settlement Period”), the Company shall be permitted to provide no less than 10 Scheduled Trading Days’ notice prior to the Ex-Dividend Date for the applicable issuance or distribution, in which case the Company shall be required to settle all conversions of Notes with a Conversion Date occurring during the Distribution Trigger Irrevocable Physical Settlement Period by Physical Settlement, and the Company shall describe the same in such notice. Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at any time until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take place, in each case, even if the Notes are not otherwise convertible at such time. Notwithstanding the foregoing, Holders may not convert their Notes under this Section 14.01(b)(ii) if they participate (other than in the case of a share split or share combination) at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described under this Section 14.01(b)(ii)(A) or (B) without having to convert their Notes as if they held a number of shares of Common Stock equal to the then-effective Conversion Rate multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. Neither the Trustee not the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether an issuance or distribution described in this clause (ii) has occurred.
(ii) If a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section 15.02, or if the Company is a party to a Share Exchange Event (other than a Share Exchange Event that is solely for the purpose of changing the Company’s jurisdiction of organization that does not constitute a Fundamental Change or Make-Whole Fundamental Change) that occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, in each case, pursuant to which the Common Stock would be converted into cash, securities or other assets, all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the effective date of the transaction until the earlier of (x) 35 Trading Days after the effective date of such transaction or, if such transaction also constitutes a Fundamental Change, until the close of business on the Business Day immediately preceding the related Fundamental Change Repurchase Date and (y) the second Scheduled Trading Day immediately preceding the Maturity Date. The Company shall notify in writing Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the effective date of such transaction. Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether a Fundamental Change or a Make-Whole Fundamental Change has occurred.
(iii) Prior to the close of business on the Business Day immediately preceding August 15, 2029, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar quarter commencing after the calendar quarter ending on March 31, 2025 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day. The Company shall determine at the beginning of each calendar quarter commencing after March 31, 2025 whether the Notes may be surrendered for conversion in accordance with this clause (iv) and shall provide written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) if the Notes become convertible in accordance with this clause (iv). Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether the condition set forth in this clause (iv) has been met.
(iv) If the Company calls any or all of the Notes for redemption pursuant to Article 16 prior to the close of business on the Business Day immediately preceding August 15, 2029, then a Holder may surrender all or any part of such of its Notes as called for redemption for conversion at any time prior to the close of business on the second Scheduled Trading Day prior to the Redemption Date, even if the Notes are not otherwise convertible at such time. After that time, the right to convert such Notes pursuant to this Section 14.01(b)(v) shall expire, unless the Company defaults in the payment of the Redemption Price, in which case a Holder of Notes may convert its Notes until the Redemption Price has been paid or duly provided for.
Appears in 1 contract
Conversion Privilege. (a) Subject to and upon compliance with the provisions of this Article 14, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the Business Day immediately preceding August 15July 1, 2029 2024 under the circumstances and during the periods set forth in Section 14.01(b), and (ii) regardless of the conditions described in Section 14.01(b), on or after August 15July 1, 2029 2024 and prior to the close of business on the second Scheduled Trading Business Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 62.3539 500 shares of Common Stock (subject to adjustment as provided in this Article 14, the “Conversion Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.02, the “Conversion Obligation”).
(ab) (i) Prior to the close of business on the Business Day immediately preceding August 15July 1, 20292024, a Holder may surrender all or any portion of its Notes for conversion at any time during the five consecutive Business Day period immediately after following any five consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this subsection (b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on each such Trading Day and the Conversion Rate on each such Trading Day. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this subsection (b)(i) and the definition of Trading Price set forth in this Indenture. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes unless the Company has requested such determination, determination in writing and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes) unless a Holder of at least $1,000,000 aggregate principal amount of Notes requests in writing that the Company make such a determination and provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the Conversion Rate on such Trading Day, at which time the Company shall instruct three nationally recognized securities dealers to deliver bids and instruct the Bid Solicitation Agent (if other than the Company) in writing to determine, or if the Company is acting as Bid Solicitation Agent, the Company shall determine, determine the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate. If (x) Rate and instruct three independent nationally recognized securities dealers to deliver bids to the Company is not acting as Bid Solicitation Agent, and . If the Company does not instruct the Bid Solicitation Agent to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentence, or if the Company instructs the Bid Solicitation Agent in writing to obtain bids and the Bid Solicitation Agent fails to make such determination, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, then, in either case, the Trading Price per $1,000 principal amount of Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company shall so notify in writing the Holders, the Trustee and the Conversion Agent (if other than the Trustee)) in writing. If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate for such date, the Company shall so notify in writing the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee).
(i) If, prior to the close of business on the Business Day immediately preceding August 15, 2029, the Company elects to:
(A) issue to all or substantially all holders of the Common Stock any rights, options or warrants (other than in connection with a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock) entitling them, for a period of not more than 45 calendar days after the announcement date of such issuance, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance; or
(B) distribute to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase securities of the Company (other than pursuant to a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock), which distribution has a per share value, as reasonably determined by the Board of Directors, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution, then, in either case, the Company shall notify in writing all Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) at least 30 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan, no later than the Business Day after the Company becomes aware that such separation has occurred or will occur); provided, however, that if the Company elects Physical Settlement (to the extent that the Company has not elected another Settlement Method to apply, including pursuant to Section 14.02) in the applicable notice in respect of any conversions that occurs from, and including, the date the Company provides such notice to, and including, the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or issuance (or, if earlier, the date the Company announces that such issuance or distribution will not take place) (the “Distribution Trigger Irrevocable Physical Settlement Period”), the Company shall be permitted to provide no less than 10 Scheduled Trading Days’ notice prior to the Ex-Dividend Date for the applicable issuance or distribution, in which case the Company shall be required to settle all conversions of Notes with a Conversion Date occurring during the Distribution Trigger Irrevocable Physical Settlement Period by Physical Settlement, and the Company shall describe the same in such notice. Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at any time until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take place, in each case, even if the Notes are not otherwise convertible at such time. Notwithstanding the foregoing, Holders may not convert their Notes under this Section 14.01(b)(ii) if they participate (other than in the case of a share split or share combination) at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described under this Section 14.01(b)(ii)(A) or (B) without having to convert their Notes as if they held a number of shares of Common Stock equal to the then-effective Conversion Rate multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. Neither the Trustee not the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether an issuance or distribution described in this clause (ii) has occurredwriting.
(ii) If a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section 15.02, or if the Company is a party to a Share Exchange Event (other than a Share Exchange Event that is solely for the purpose of changing the Company’s jurisdiction of organization that does not constitute a Fundamental Change or Make-Whole Fundamental Change) that occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, in each case, pursuant to which the Common Stock would be converted into cash, securities or other assets, all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the effective date of the transaction until the earlier of (x) 35 Trading Days after the effective date of such transaction or, if such transaction also constitutes a Fundamental Change, until the close of business on the Business Day immediately preceding the related Fundamental Change Repurchase Date and (y) the second Scheduled Trading Day immediately preceding the Maturity Date. The Company shall notify in writing Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the effective date of such transaction. Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether a Fundamental Change or a Make-Whole Fundamental Change has occurred.
(iii) Prior to the close of business on the Business Day immediately preceding August 15, 2029, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar quarter commencing after the calendar quarter ending on March 31, 2025 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day. The Company shall determine at the beginning of each calendar quarter commencing after March 31, 2025 whether the Notes may be surrendered for conversion in accordance with this clause (iv) and shall provide written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) if the Notes become convertible in accordance with this clause (iv). Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether the condition set forth in this clause (iv) has been met.
(iv) If the Company calls any or all of the Notes for redemption pursuant to Article 16 prior to the close of business on the Business Day immediately preceding August 15, 2029, then a Holder may surrender all or any part of such of its Notes as called for redemption for conversion at any time prior to the close of business on the second Scheduled Trading Day prior to the Redemption Date, even if the Notes are not otherwise convertible at such time. After that time, the right to convert such Notes pursuant to this Section 14.01(b)(v) shall expire, unless the Company defaults in the payment of the Redemption Price, in which case a Holder of Notes may convert its Notes until the Redemption Price has been paid or duly provided for.
Appears in 1 contract
Sources: Indenture (RumbleON, Inc.)
Conversion Privilege. (a) Subject to and upon compliance with the provisions of this Article 14, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is a minimum of $1,000 principal amount or an integral multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the Business Day immediately preceding August October 15, 2029 2030 under the circumstances and during the periods set forth in Section 14.01(b), and (ii) regardless of the conditions described in Section 14.01(b), on or after August October 15, 2029 2030 and prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 62.3539 18.2243 shares of Common Stock (subject to adjustment as provided in this Article 14, the “Conversion Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.02, the “Conversion Obligation”).
(ab) (i) Prior to the close of business on the Business Day immediately preceding August October 15, 20292030, a Holder may surrender all or any portion of its Notes for conversion at any time during the five Business Day period immediately after any five ten consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this subsection (b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on each such Trading Day and the Conversion Rate on each such Trading Day. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this subsection (b)(i) and the definition of Trading Price set forth in this Indenture. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes unless the Company has requested such determination, and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes) unless a Holder or Holders of at least $1,000,000 2,000,000 aggregate principal amount of Notes requests in writing that the Company make such a determination and provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the Conversion Rate on such Trading Day, at which time the Company shall instruct three nationally recognized securities dealers to deliver bids and instruct the Bid Solicitation Agent (if other than the Company) in writing to determine, or if the Company is acting as Bid Solicitation Agent, the Company shall determine, the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate. At such time as the Company instructs the Bid Solicitation Agent (if other than the Company) in writing to obtain bids, the Company shall provide the Bid Solicitation Agent with the names and contact information for the securities dealers it selected and the Company shall instruct such securities dealers to provide bids to the Bid Solicitation Agent. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not not, when the Company is required to, instruct the Bid Solicitation Agent to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentence, or if the Company instructs gives such instruction to the Bid Solicitation Agent to obtain bids and the Bid Solicitation Agent fails to make such determination, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, then, in either case, the Trading Price per $1,000 principal amount of Notes on any date shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company shall so notify in writing the Holders, the Trustee and the Conversion Agent (if other than the Trustee)) in writing. Any such determination shall be conclusive absent manifest error. If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate for such date, the Company shall so notify in writing the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee).
(i) If, prior to the close of business on the Business Day immediately preceding August 15, 2029, the Company elects to:
(A) issue to all or substantially all holders of the Common Stock any rights, options or warrants (other than in connection with a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock) entitling them, for a period of not more than 45 calendar days after the announcement date of such issuance, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance; or
(B) distribute to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase securities of the Company (other than pursuant to a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock), which distribution has a per share value, as reasonably determined by the Board of Directors, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution, then, in either case, the Company shall notify in writing all Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) at least 30 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan, no later than the Business Day after the Company becomes aware that such separation has occurred or will occur); provided, however, that if the Company elects Physical Settlement (to the extent that the Company has not elected another Settlement Method to apply, including pursuant to Section 14.02) in the applicable notice in respect of any conversions that occurs from, and including, the date the Company provides such notice to, and including, the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or issuance (or, if earlier, the date the Company announces that such issuance or distribution will not take place) (the “Distribution Trigger Irrevocable Physical Settlement Period”), the Company shall be permitted to provide no less than 10 Scheduled Trading Days’ notice prior to the Ex-Dividend Date for the applicable issuance or distribution, in which case the Company shall be required to settle all conversions of Notes with a Conversion Date occurring during the Distribution Trigger Irrevocable Physical Settlement Period by Physical Settlement, and the Company shall describe the same in such notice. Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at any time until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take place, in each case, even if the Notes are not otherwise convertible at such time. Notwithstanding the foregoing, Holders may not convert their Notes under this Section 14.01(b)(ii) if they participate (other than in the case of a share split or share combination) at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described under this Section 14.01(b)(ii)(A) or (B) without having to convert their Notes as if they held a number of shares of Common Stock equal to the then-effective Conversion Rate multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. Neither the Trustee not the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether an issuance or distribution described in this clause (ii) has occurred.
(ii) If a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section 15.02, or if the Company is a party to a Share Exchange Event (other than a Share Exchange Event that is solely for the purpose of changing the Company’s jurisdiction of organization that does not constitute a Fundamental Change or Make-Whole Fundamental Change) that occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, in each case, pursuant to which the Common Stock would be converted into cash, securities or other assets, all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the effective date of the transaction until the earlier of (x) 35 Trading Days after the effective date of such transaction or, if such transaction also constitutes a Fundamental Change, until the close of business on the Business Day immediately preceding the related Fundamental Change Repurchase Date and (y) the second Scheduled Trading Day immediately preceding the Maturity Date. The Company shall notify in writing Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the effective date of such transaction. Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether a Fundamental Change or a Make-Whole Fundamental Change has occurred.
(iii) Prior to the close of business on the Business Day immediately preceding August 15, 2029, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar quarter commencing after the calendar quarter ending on March 31, 2025 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day. The Company shall determine at the beginning of each calendar quarter commencing after March 31, 2025 whether the Notes may be surrendered for conversion in accordance with this clause (iv) and shall provide written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing and thereafter neither the Company nor the Bid Solicitation Agent (if other than the Company) shall be required to solicit bids (or determine the Trading Price of the Notes become convertible in accordance with this clause (iv). Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether the condition as set forth in this clause Indenture) again unless a new Holder request is made as provided in this subsection (iv) has been metb)(i).
(iv) If the Company calls any or all of the Notes for redemption pursuant to Article 16 prior to the close of business on the Business Day immediately preceding August 15, 2029, then a Holder may surrender all or any part of such of its Notes as called for redemption for conversion at any time prior to the close of business on the second Scheduled Trading Day prior to the Redemption Date, even if the Notes are not otherwise convertible at such time. After that time, the right to convert such Notes pursuant to this Section 14.01(b)(v) shall expire, unless the Company defaults in the payment of the Redemption Price, in which case a Holder of Notes may convert its Notes until the Redemption Price has been paid or duly provided for.
Appears in 1 contract
Sources: Indenture (Astronics Corp)
Conversion Privilege. (a) Subject to and upon compliance with the provisions of this Article 14, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the Business Day immediately preceding August September 15, 2029 under the circumstances and during the periods set forth in Section 14.01(b), and (ii) regardless of the conditions described in Section 14.01(b), on or after August September 15, 2029 and prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 62.3539 0.6677 shares of Common Stock (subject to adjustment as provided in this Article 14, the “Conversion Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.02, the “Conversion Obligation”).
(ab) (i) Prior to the close of business on the Business Day immediately preceding August September 15, 2029, a Holder may surrender all or any portion of its Notes for conversion at any time during the five Business Day period immediately after any five consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this subsection (b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on each such Trading Day and the Conversion Rate on each such Trading Day. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this subsection (b)(i) and the definition of Trading Price set forth in this Indenture. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes unless the Company has requested such determination, and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes) unless a Holder of at least $1,000,000 aggregate principal amount of Notes requests in writing that the Company make such a determination and provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the Conversion Rate on such Trading Day, at which time the Company shall instruct three nationally recognized securities dealers to deliver bids and instruct the Bid Solicitation Agent (if other than the Company) to determine, or if the Company is acting as Bid Solicitation Agent, the Company shall determine, the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not instruct the Bid Solicitation Agent to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentence, or if the Company instructs the Bid Solicitation Agent to obtain bids and the Bid Solicitation Agent fails to make such determination, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, then, in either case, the Trading Price per $1,000 principal amount of Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company shall so notify in writing the Holders, the Trustee and the Conversion Agent (if other than the Trustee). If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate for such date, the Company shall so notify in writing the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee).
(i) If, prior to the close of business on the Business Day immediately preceding August 15, 2029, the Company elects to:
(A) issue to all or substantially all holders of the Common Stock any rights, options or warrants (other than in connection with a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock) entitling them, for a period of not more than 45 calendar days after the announcement date of such issuance, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance; or
(B) distribute to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase securities of the Company (other than pursuant to a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock), which distribution has a per share value, as reasonably determined by the Board of Directors, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution, then, in either case, the Company shall notify in writing all Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) at least 30 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan, no later than the Business Day after the Company becomes aware that such separation has occurred or will occur); provided, however, that if the Company elects Physical Settlement (to the extent that the Company has not elected another Settlement Method to apply, including pursuant to Section 14.02) in the applicable notice in respect of any conversions that occurs from, and including, the date the Company provides such notice to, and including, the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or issuance (or, if earlier, the date the Company announces that such issuance or distribution will not take place) (the “Distribution Trigger Irrevocable Physical Settlement Period”), the Company shall be permitted to provide no less than 10 Scheduled Trading Days’ notice prior to the Ex-Dividend Date for the applicable issuance or distribution, in which case the Company shall be required to settle all conversions of Notes with a Conversion Date occurring during the Distribution Trigger Irrevocable Physical Settlement Period by Physical Settlement, and the Company shall describe the same in such notice. Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at any time until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take place, in each case, even if the Notes are not otherwise convertible at such time. Notwithstanding the foregoing, Holders may not convert their Notes under this Section 14.01(b)(ii) if they participate (other than in the case of a share split or share combination) at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described under this Section 14.01(b)(ii)(A) or (B) without having to convert their Notes as if they held a number of shares of Common Stock equal to the then-effective Conversion Rate multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. Neither the Trustee not the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether an issuance or distribution described in this clause (ii) has occurred.
(ii) If a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section 15.02, or if the Company is a party to a Share Exchange Event (other than a Share Exchange Event that is solely for the purpose of changing the Company’s jurisdiction of organization that does not constitute a Fundamental Change or Make-Whole Fundamental Change) that occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, in each case, pursuant to which the Common Stock would be converted into cash, securities or other assets, all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the effective date of the transaction until the earlier of (x) 35 Trading Days after the effective date of such transaction or, if such transaction also constitutes a Fundamental Change, until the close of business on the Business Day immediately preceding the related Fundamental Change Repurchase Date and (y) the second Scheduled Trading Day immediately preceding the Maturity Date. The Company shall notify in writing Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the effective date of such transaction. Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether a Fundamental Change or a Make-Whole Fundamental Change has occurred.
(iii) Prior to the close of business on the Business Day immediately preceding August 15, 2029, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar quarter commencing after the calendar quarter ending on March 31, 2025 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day. The Company shall determine at the beginning of each calendar quarter commencing after March 31, 2025 whether the Notes may be surrendered for conversion in accordance with this clause (iv) and shall provide written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) if the Notes become convertible in accordance with this clause (iv). Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether the condition set forth in this clause (iv) has been met.
(iv) If the Company calls any or all of the Notes for redemption pursuant to Article 16 prior to the close of business on the Business Day immediately preceding August 15, 2029, then a Holder may surrender all or any part of such of its Notes as called for redemption for conversion at any time prior to the close of business on the second Scheduled Trading Day prior to the Redemption Date, even if the Notes are not otherwise convertible at such time. After that time, the right to convert such Notes pursuant to this Section 14.01(b)(v) shall expire, unless the Company defaults in the payment of the Redemption Price, in which case a Holder of Notes may convert its Notes until the Redemption Price has been paid or duly provided for.
Appears in 1 contract
Sources: Indenture (MICROSTRATEGY Inc)
Conversion Privilege. (a) Subject to and upon compliance with the provisions of this Article Article 14, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is a minimum of $1,000 principal amount or an integral multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section Section 14.01(b), at any time prior to the close of business on the Business Day immediately preceding August June 15, 2029 2028 under the circumstances and during the periods set forth in Section 14.01(b), and (ii) regardless of the conditions described in Section 14.01(b), on or after August June 15, 2029 2028 and prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 62.3539 14.0753 shares of Common Stock (subject to adjustment as provided in this Article Article 14, the “Conversion Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section Section 14.02, the “Conversion Obligation”).
(a) (i) Prior to the close of business on the Business Day immediately preceding August June 15, 20292028, a Holder may surrender all or any portion of its Notes for conversion at any time during the five Business Day period immediately after any five ten consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this subsection (b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on each such Trading Day and the Conversion Rate on each such Trading Day. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this subsection (b)(i) and the definition of Trading Price set forth in this Indenture. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes unless the Company has requested such determination, and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes) unless a Holder of at least $1,000,000 2,000,000 aggregate principal amount of Notes requests in writing that the Company make such a determination and provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the Conversion Rate on such Trading Day, at which time the Company shall instruct three nationally recognized securities dealers to deliver bids and instruct the Bid Solicitation Agent (if other than the Company) to determine, or if the Company is acting as Bid Solicitation Agent, the Company shall determine, the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate. At such time as the Company instructs the Bid Solicitation Agent (if other than the Company) to obtain bids, the Company shall provide the Bid Solicitation Agent with the names and contact information for the securities dealers it selected and the Company shall instruct such securities dealers to provide bids to the Bid Solicitation Agent. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not not, when the Company is required to, instruct the Bid Solicitation Agent to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentence, or if the Company instructs gives such instruction to the Bid Solicitation Agent to obtain bids and the Bid Solicitation Agent fails to make such determination, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, then, in either case, the Trading Price per $1,000 principal amount of Notes on any date shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company shall so notify in writing the Holders, the Trustee and the Conversion Agent (if other than the Trustee)) in writing. Any such determination shall be conclusive absent manifest error. If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate for such date, the Company shall so notify in writing the Holders of the NotesHolders, the Trustee and the Conversion Agent (if other than the Trustee) in writing and thereafter neither the Company nor the Bid Solicitation Agent (if other than the Company) shall be required to solicit bids (or determine the Trading Price of the Notes as set forth in this Indenture) again unless a new Holder request is made as provided in this subsection (b)(i).
(iii) If, prior to the close of business on the Business Day immediately preceding August June 15, 20292028, the Company elects to:
(A) issue distribute to all or substantially all holders of the Common Stock any rights, options or warrants (other than in connection with a stockholder rights plan so long as prior to the separation of such rights have not separated from the shares of the Common Stock) entitling them, for a period of not more than 45 60 calendar days after the announcement date of such issuancedistribution, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuancedistribution; or
(B) distribute to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase securities of the Company (other than pursuant to in connection with a stockholder rights plan so long as prior to separation of such rights have not separated from the shares of the Common Stock), which distribution has a per share value, as reasonably determined by the Board of DirectorsCompany in good faith, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution, then, in either case, the Company shall notify in writing all Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) in writing at least 30 55 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan, no later than the Business Day as soon as reasonably practicable after the Company becomes aware that such separation or triggering event has occurred or will occur); provided, however, that if the Company elects Physical Settlement (to the extent that the Company has not elected another Settlement Method to apply, including pursuant to Section 14.02) in the applicable notice in respect of any conversions that occurs from, and including, the date the Company provides such notice to, and including, the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or issuance (or, if earlier, the date the Company announces that such issuance or distribution will not take place) (the “Distribution Trigger Irrevocable Physical Settlement Period”), the Company shall be permitted to provide no less than 10 Scheduled Trading Days’ notice prior to the Ex-Dividend Date for the applicable issuance or distribution, in which case the Company shall be required to settle all conversions of Notes with a Conversion Date occurring during the Distribution Trigger Irrevocable Physical Settlement Period by Physical Settlement, and the Company shall describe the same in such notice. Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at any time until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take place, in each case, even if the Notes are not otherwise convertible at such time. Notwithstanding the foregoing, ; provided that Holders may not convert their Notes under pursuant to this Section 14.01(b)(iisubsection (b)(ii) if they participate (other than in the case of a share split or share combination) participate, at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described under this Section 14.01(b)(ii)(Ain clause (A) or (B) of this subsection (b)(ii) without having to convert their Notes as if they held a number of shares of Common Stock equal to the then-effective Conversion Rate as of the Record Date for such distribution, multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. Neither the Trustee not the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether an issuance or distribution described in this clause (ii) has occurred.
(iiiii) If (A) a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close of business on the Business Day immediately preceding August June 15, 20292028, regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section Section 15.02, or (B) if the Company is a party to a Share Exchange Event (other than a Share Exchange Event that is solely for the purpose of changing the Company’s jurisdiction of organization that (x) does not constitute a Fundamental Change or a Make-Whole Fundamental ChangeChange and (y) results in a reclassification, conversion or exchange of outstanding shares of Common Stock solely into shares of common stock of the surviving entity and such common stock becomes Reference Property for the Notes) that occurs prior to the close of business on the Business Day immediately preceding August June 15, 20292028 (each such Fundamental Change, in each caseMake-Whole Fundamental Change or Share Exchange Event, pursuant to which the Common Stock would be converted into cash, securities or other assetsa “Corporate Event”), all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the effective date of the transaction such Corporate Event until the earlier of (x) 35 Trading Days after the effective date of the Corporate Event (or, if the Company gives notice after the effective date of such transaction Corporate Event, until 35 Trading Days after the date the Company gives notice of such Corporate Event) or, if such transaction Corporate Event also constitutes a Fundamental Change (other than an Exempted Fundamental Change), until the close of business on the Business Day immediately preceding the related Fundamental Change Repurchase Date and (y) the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date. The Company shall notify in writing Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than in writing as promptly as practicable following the effective date of such transactionCorporate Event. Neither If the Trustee nor Company does not provide such notice by the Conversion Agent shall have any duty to determine or verify second Business Day after such effective date, then the Company’s determination last day on which the Notes are convertible will be extended by the number of whether a Fundamental Change or a Make-Whole Fundamental Change has occurredBusiness Days from, and including, the second Business Day after such effective date to, but excluding, the date the Company provides such notice.
(iiiiv) Prior to the close of business on the Business Day immediately preceding August June 15, 20292028, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar quarter commencing after the calendar quarter ending on March December 31, 2025 2023 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day. The Company shall determine at the beginning of each calendar quarter commencing after March 31, 2025 whether the Notes may be surrendered for conversion in accordance with this clause (iv) and shall provide written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) if the Notes become convertible in accordance with this clause (iv). Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify as determined by the Company’s determination of whether the condition set forth in this clause (iv) has been met.
(ivv) If the Company calls any or all of the Notes for redemption pursuant to Article 16 prior to the close of business on the Business Day immediately preceding August 15, 2029Article 16, then a Holder may surrender all or any part of such portion of its Called Notes as called for redemption for conversion at any time prior to the close of business on the second Scheduled Trading Day prior to immediately preceding the applicable Redemption Date, even if the Called Notes are not otherwise convertible at such time. After that time, the right to convert such Called Notes pursuant to this Section 14.01(b)(v) on account of the Company’s delivery of a Notice of Redemption shall expire, unless the Company defaults in the payment of the Redemption Price, in which case a Holder of Called Notes may convert all or a portion of its Called Notes until the close of business on the Scheduled Trading Day immediately preceding the date on which the Redemption Price has been paid or duly provided for. If the Company elects to redeem fewer than all of the outstanding Notes pursuant to Section 16.01, and the Holder of any Note (or any owner of a beneficial interest in any Global Note) is reasonably not able to determine, prior to the close of business on the 54th Scheduled Trading Day immediately preceding the relevant Redemption Date, whether such Note or beneficial interest, as applicable, is to be redeemed pursuant to such Optional Redemption, then such Holder or owner, as applicable, will be entitled to convert such Note or beneficial interest, as applicable, at any time before the close of business on the second Scheduled Trading Day immediately preceding such Redemption Date, unless the Company defaults in the payment of the Redemption Price, in which case such Holder or owner, as applicable, will be entitled to convert such Note or beneficial interest, as applicable, until the close of business on the Scheduled Trading Day immediately preceding the date on which the Redemption Price has been paid or duly provided for, and each such conversion will be deemed to be of a Note called for Optional Redemption, and such Note or beneficial interest will be deemed called for Optional Redemption solely for the purposes of such conversion (“Deemed Redemption”). In connection with an Optional Redemption pursuant to Section 16.01, if a Holder elects to convert Called Notes during the related Redemption Period, the Company will, under certain circumstances, increase the Conversion Rate for such Called Notes pursuant to Section 14.03. Accordingly, if the Company elects to redeem fewer than all of the outstanding Notes pursuant to Section 16.01, Holders of the Notes that are not Called Notes will not be entitled to convert such Notes pursuant to this Section 14.01(b)(v) and will not be entitled to an increase in the Conversion Rate on account of the Notice of Redemption for conversions of such Notes during the related Redemption Period, even if such Notes are otherwise convertible pursuant to any other provision of this Section 14.01(b).
Appears in 1 contract
Conversion Privilege. (a) Subject to and upon compliance with the provisions of this Article 14, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the Business Day immediately preceding August May 15, 2029 2028 under the circumstances and during the periods set forth in Section 14.01(b), and (ii) regardless of the conditions described in Section 14.01(b), on or after August May 15, 2029 2028 and prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 62.3539 104.8658 shares of Common Stock (subject to adjustment as provided in this Article 14, the “Conversion Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.02, the “Conversion Obligation”).
(ab) (i) Prior to the close of business on the Business Day immediately preceding August May 15, 20292028, a Holder may surrender all or any portion of its Notes for conversion at any time during the five Business Day period immediately after any five ten consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this subsection (b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on each such Trading Day and the Conversion Rate on each such Trading Day. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this subsection (b)(i) and the definition of Trading Price set forth in this Indenture. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes unless the Company has requested such determinationdetermination in writing and has provided the Bid Solicitation Agent with the names and contact information of the three independent nationally recognized securities dealers the Company has selected for this purpose, and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes) unless a Holder of at least $1,000,000 2,000,000 aggregate principal amount of Notes requests in writing that the Company make such a determination and provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the Conversion Rate on such Trading Day, at which time the Company shall instruct three nationally recognized securities dealers to deliver bids and instruct the Bid Solicitation Agent (if other than the Company) to determine, or if the Company is acting as Bid Solicitation Agent, the Company shall determinedetermine (in each case, by instructing three independent nationally recognized securities dealers to deliver bids to the Bid Solicitation Agent pursuant to the definition of “Trading Price”), the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not not, when the Company is required to, instruct the Bid Solicitation Agent to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentence, or if the Company instructs the Bid Solicitation Agent to obtain bids and the Bid Solicitation Agent fails to make such determination, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, then, in either case, the Trading Price per $1,000 principal amount of Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company shall so notify in writing the Holders, the Trustee and the Conversion Agent (if other than the Trustee)) in writing. Any such determination shall be conclusive absent manifest error. If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate for such dateTrading Day, the Company shall so notify in writing the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee).
(i) If, prior to the close of business on the Business Day immediately preceding August 15, 2029, the Company elects to:
(A) issue to all or substantially all holders of the Common Stock any rights, options or warrants (other than in connection with a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock) entitling them, for a period of not more than 45 calendar days after the announcement date of such issuance, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance; or
(B) distribute to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase securities of the Company (other than pursuant to a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock), which distribution has a per share value, as reasonably determined by the Board of Directors, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution, then, in either case, the Company shall notify in writing all Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) at least 30 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan, no later than the Business Day after the Company becomes aware that such separation has occurred or will occur); provided, however, that if the Company elects Physical Settlement (to the extent that the Company has not elected another Settlement Method to apply, including pursuant to Section 14.02) in the applicable notice in respect of any conversions that occurs from, and including, the date the Company provides such notice to, and including, the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or issuance (or, if earlier, the date the Company announces that such issuance or distribution will not take place) (the “Distribution Trigger Irrevocable Physical Settlement Period”), the Company shall be permitted to provide no less than 10 Scheduled Trading Days’ notice prior to the Ex-Dividend Date for the applicable issuance or distribution, in which case the Company shall be required to settle all conversions of Notes with a Conversion Date occurring during the Distribution Trigger Irrevocable Physical Settlement Period by Physical Settlement, and the Company shall describe the same in such notice. Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at any time until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take place, in each case, even if the Notes are not otherwise convertible at such time. Notwithstanding the foregoing, Holders may not convert their Notes under this Section 14.01(b)(ii) if they participate (other than in the case of a share split or share combination) at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described under this Section 14.01(b)(ii)(A) or (B) without having to convert their Notes as if they held a number of shares of Common Stock equal to the then-effective Conversion Rate multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. Neither the Trustee not the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether an issuance or distribution described in this clause (ii) has occurredwriting.
(ii) If a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section 15.02, or if the Company is a party to a Share Exchange Event (other than a Share Exchange Event that is solely for the purpose of changing the Company’s jurisdiction of organization that does not constitute a Fundamental Change or Make-Whole Fundamental Change) that occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, in each case, pursuant to which the Common Stock would be converted into cash, securities or other assets, all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the effective date of the transaction until the earlier of (x) 35 Trading Days after the effective date of such transaction or, if such transaction also constitutes a Fundamental Change, until the close of business on the Business Day immediately preceding the related Fundamental Change Repurchase Date and (y) the second Scheduled Trading Day immediately preceding the Maturity Date. The Company shall notify in writing Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the effective date of such transaction. Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether a Fundamental Change or a Make-Whole Fundamental Change has occurred.
(iii) Prior to the close of business on the Business Day immediately preceding August 15, 2029, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar quarter commencing after the calendar quarter ending on March 31, 2025 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day. The Company shall determine at the beginning of each calendar quarter commencing after March 31, 2025 whether the Notes may be surrendered for conversion in accordance with this clause (iv) and shall provide written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) if the Notes become convertible in accordance with this clause (iv). Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether the condition set forth in this clause (iv) has been met.
(iv) If the Company calls any or all of the Notes for redemption pursuant to Article 16 prior to the close of business on the Business Day immediately preceding August 15, 2029, then a Holder may surrender all or any part of such of its Notes as called for redemption for conversion at any time prior to the close of business on the second Scheduled Trading Day prior to the Redemption Date, even if the Notes are not otherwise convertible at such time. After that time, the right to convert such Notes pursuant to this Section 14.01(b)(v) shall expire, unless the Company defaults in the payment of the Redemption Price, in which case a Holder of Notes may convert its Notes until the Redemption Price has been paid or duly provided for.
Appears in 1 contract
Sources: Indenture (WisdomTree, Inc.)
Conversion Privilege. (a) Subject to and upon compliance with the provisions of this Article 14, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the Business Day immediately preceding August February 15, 2029 2028 under the circumstances and during the periods set forth in Section 14.01(b), and (ii) regardless of the conditions described in Section 14.01(b), on or after August February 15, 2029 2028 and prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 62.3539 4.3048 shares of Common Stock (subject to adjustment as provided in this Article 14, the “Conversion Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.02, the “Conversion Obligation”).
(a) (i) Prior to the close of business on the Business Day immediately preceding August February 15, 20292028, a Holder may surrender all or any portion of its Notes for conversion at any time during the five Business Day period immediately after any five ten consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this subsection (b)(iSection 14.01(b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on each such Trading Day and the Conversion Rate on each such Trading Day. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this subsection (b)(iSection 14.01(b)(i) and the definition of “Trading Price Price” set forth in this Indenture. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes unless the Company has requested such determination, and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes) unless a Holder or Holders of at least $1,000,000 aggregate 2,000,000 principal amount of Notes requests in writing that the Company make such a determination and provides aggregate provide(s) the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the Conversion Rate on such Trading Day, at which time the Company shall instruct three nationally recognized securities dealers to deliver bids and instruct the Bid Solicitation Agent (if other than the Company) in writing to determine, or if the Company is acting as Bid Solicitation Agent, the Company shall determine, the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not not, when the Company is required to, instruct the Bid Solicitation Agent to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentence, or if the Company instructs gives such instruction to the Bid Solicitation Agent to obtain bids and the Bid Solicitation Agent fails to make such determination, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, then, in either case, the Trading Price per $1,000 principal amount of Notes on any date shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company shall promptly so notify in writing the Holders, the Trustee and the Conversion Agent (if other than the Trustee)) in writing. Any such determination shall be conclusive absent manifest error. If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock on any Trading Day and the Conversion Rate for such dateTrading Day, the Company shall promptly so notify in writing the Holders of the NotesHolders, the Trustee and the Conversion Agent (if other than the Trustee) in writing and thereafter neither the Company nor the Bid Solicitation Agent (if other than the Company) shall be required to solicit bids (or determine the Trading Price of the Notes as set forth in this Indenture) again unless a new Holder request is made as provided in this Section 14.01(b)(i). Neither the Trustee nor the Bid Solicitation Agent (if other than the Company) shall have any liability or responsibility for any Trading Price or related information or the accuracy thereof.
(iii) If, prior to the close of business on the Business Day immediately preceding August February 15, 20292028, the Company elects to:
(A) issue distribute to all or substantially all holders of the Common Stock any rights, options or warrants (other than in connection with a stockholder rights plan so long as prior to the separation of such rights have not separated from the shares of the Common Stock) entitling them, for a period of not more than 45 60 calendar days after the announcement date of such issuancedistribution, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuancedistribution; or
(B) distribute to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase securities of the Company (other than pursuant to in connection with a stockholder rights plan so long as prior to separation of such rights have not separated from the shares of the Common Stock), which distribution has a per share value, as reasonably determined by the Board of DirectorsCompany in good faith, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution, then, in either case, the Company shall notify in writing all Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) in writing at least 30 56 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan, no later than the Business Day as soon as reasonably practicable after the Company becomes aware that such separation or triggering event has occurred or will occur); provided, however, that if the Company elects Physical Settlement (to the extent that the Company has not elected another Settlement Method to apply, including pursuant to Section 14.02) in the applicable notice in respect of any conversions that occurs from, and including, the date the Company provides such notice to, and including, the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or issuance (or, if earlier, the date the Company announces that such issuance or distribution will not take place) (the “Distribution Trigger Irrevocable Physical Settlement Period”), the Company shall be permitted to provide no less than 10 Scheduled Trading Days’ notice prior to the Ex-Dividend Date for the applicable issuance or distribution, in which case the Company shall be required to settle all conversions of Notes with a Conversion Date occurring during the Distribution Trigger Irrevocable Physical Settlement Period by Physical Settlement, and the Company shall describe the same in such notice. Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at any time until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take place, in each case, even if the Notes are not otherwise convertible at such time. Notwithstanding the foregoing, ; provided that Holders may not convert their Notes under pursuant to this Section 14.01(b)(ii) if they participate (other than in the case of a share split or share combination) participate, at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described under this in Section 14.01(b)(ii)(A) or (B) without having to convert their Notes as if they held a number of shares of Common Stock equal to the then-effective Conversion Rate Rate, multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. Neither the Trustee not the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether an issuance or distribution described in this clause (ii) has occurred.
(iiiii) If (A) a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close of business on the Business Day immediately preceding August February 15, 20292028, regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section 15.02, or (B) if the Company is a party to a Share Exchange Event (other than a Share Exchange Event that is solely for the purpose of changing the Company’s jurisdiction of organization that (x) does not constitute a Fundamental Change or a Make-Whole Fundamental Change, (y) does not violate the provisions under Article 11 and (z) results in a reclassification, conversion or exchange of outstanding shares of Common Stock solely into shares of common stock of the surviving entity and such common stock becomes Reference Property for the Notes) that occurs prior to the close of business on the Business Day immediately preceding August February 15, 20292028 (each such Fundamental Change, in each caseMake-Whole Fundamental Change or Share Exchange Event, pursuant to which the Common Stock would be converted into cash, securities or other assetsa “Corporate Event”), all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the effective date of the transaction such Corporate Event until the earlier of (x) 35 Trading Days after the effective date of the Corporate Event (or, if the Company gives notice after the effective date of such transaction Corporate Event, until 35 Trading Days after the date the Company gives notice of such Corporate Event) or, if such transaction Corporate Event also constitutes a Fundamental Change (other than an Exempted Fundamental Change), until the close of business on the Business Day immediately preceding the related Fundamental Change Repurchase Date and (y) the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date. The Company shall notify in writing Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than in writing as promptly as practicable following the effective date of such transaction. Neither Corporate Event, but in no event later than one Business Day after the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination effective date of whether a Fundamental Change or a Make-Whole Fundamental Change has occurredsuch Corporate Event.
(iiiiv) Prior to the close of business on the Business Day immediately preceding August February 15, 20292028, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar quarter commencing after the calendar quarter ending on March 31September 30, 2025 2024 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day. The Company shall determine at the beginning of each calendar quarter commencing after March 31September 30, 2025 2024 whether the Notes may be surrendered for conversion in accordance with this clause (ivSection 14.01(b)(iv) and shall provide prompt written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) if the Notes become convertible in accordance with this clause (ivSection 14.01(b)(iv). Neither the Trustee nor the Conversion Agent (if other than the Trustee) shall have any duty to determine or verify such determination by the Company’s Company pursuant to this Section 14.01(b)(iv) or any similar determination of whether by the Company that the Notes have become convertible in accordance with any condition set forth in this clause (iv) has been metSection 14.01(b).
(iv) If the Company calls any or all of the Notes for redemption pursuant to Article 16 prior to the close of business on the Business Day immediately preceding August 15, 2029, then a Holder may surrender all or any part of such of its Notes as called for redemption for conversion at any time prior to the close of business on the second Scheduled Trading Day prior to the Redemption Date, even if the Notes are not otherwise convertible at such time. After that time, the right to convert such Notes pursuant to this Section 14.01(b)(v) shall expire, unless the Company defaults in the payment of the Redemption Price, in which case a Holder of Notes may convert its Notes until the Redemption Price has been paid or duly provided for.
Appears in 1 contract
Sources: Indenture (Meritage Homes CORP)
Conversion Privilege. (a) Subject to and upon compliance with the provisions of this Article 14, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the Business Day immediately preceding August October 15, 2029 2030 under the circumstances and during the periods set forth in Section 14.01(b), and (ii) regardless of the conditions described in Section 14.01(b), on or after August October 15, 2029 2030 and prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 62.3539 $47.78 shares of Common Stock (subject to adjustment as provided in this Article 14, the “Conversion Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.02, the “Conversion Obligation”).
(a) (i) Prior to the close of business on the Business Day immediately preceding August October 15, 20292030, a Holder may surrender all or any portion of its Notes for conversion at any time during the five consecutive Business Day period immediately after any five ten consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this subsection (b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on each such Trading Day and the Conversion Rate on each such Trading Day. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this subsection (b)(i) and the definition of Trading Price set forth in this Indenture. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes unless the Company has requested such determination, and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes) unless a Holder or Holders of at least $1,000,000 aggregate 5,000,000 principal amount of Notes requests in writing that the Company make such a determination and provides aggregate provide(s) the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the Conversion Rate on such Trading Day, at which time the Company shall instruct three nationally recognized securities dealers to deliver bids and instruct the Bid Solicitation Agent (if other than the Company) in writing to determine, or if the Company is acting as Bid Solicitation Agent, the Company shall determine, the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not not, when the Company is required to, instruct the Bid Solicitation Agent to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentence, or if the Company instructs gives such instruction to the Bid Solicitation Agent to obtain bids and the Bid Solicitation Agent fails to make such determination, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, then, in either case, the Trading Price per $1,000 principal amount of Notes on any date shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company shall promptly so notify in writing the Holders, the Trustee and the Conversion Agent (if other than the Trustee)) in writing. Any such determination shall be conclusive absent manifest error. If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate for such date, the Company shall promptly so notify in writing the Holders of the NotesHolders, the Trustee and the Conversion Agent (if other than the Trustee) in writing and thereafter neither the Company nor the Bid Solicitation Agent (if other than the Company) shall be required to solicit bids (or determine the Trading Price of the Notes as set forth in this Indenture) again unless a new Holder request is made as provided in this subsection (b)(i). Neither the Trustee nor the Bid Solicitation Agent (if other than the Company) shall have any liability or responsibility for any Trading Price or related information or the accuracy thereof.
(iii) If, prior to the close of business on the Business Day immediately preceding August October 15, 20292030, the Company elects to:
(A) issue distribute to all or substantially all holders of the Common Stock any rights, options or warrants (other than in connection with a stockholder rights plan so long as prior to the separation of such rights have not separated from the shares of the Common Stock) entitling them, for a period of not more than 45 60 calendar days after the announcement date of such issuancedistribution, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuancedistribution; or
(B) distribute to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase securities of the Company (other than pursuant to in connection with a stockholder rights plan so long as prior to separation of such rights have not separated from the shares of the Common Stock), which distribution has a per share value, as reasonably determined by the Board of DirectorsDirectors in good faith, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution, then, in either case, the Company shall notify in writing all Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) in writing at least 30 46 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan, no later than the Business Day as soon as reasonably practicable after the Company becomes aware that such separation or triggering event has occurred or will occur); provided, however, that if the Company elects Physical Settlement (to the extent that the Company has not elected another Settlement Method to apply, including pursuant to Section 14.02) in the applicable notice in respect of any conversions that occurs from, and including, the date the Company provides such notice to, and including, the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or issuance (or, if earlier, the date the Company announces that such issuance or distribution will not take place) (the “Distribution Trigger Irrevocable Physical Settlement Period”), the Company shall be permitted to provide no less than 10 Scheduled Trading Days’ notice prior to the Ex-Dividend Date for the applicable issuance or distribution, in which case the Company shall be required to settle all conversions of Notes with a Conversion Date occurring during the Distribution Trigger Irrevocable Physical Settlement Period by Physical Settlement, and the Company shall describe the same in such notice. Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at any time until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take place, in each case, even if the Notes are not otherwise convertible at such time. Notwithstanding the foregoing, ; provided that Holders may not convert their Notes under pursuant to this Section 14.01(b)(iisubsection (b)(ii) if they participate (other than in the case of a share split or share combination) participate, at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described under this Section 14.01(b)(ii)(Ain clause (A) or (B) of this subsection (b)(ii) without having to convert their Notes as if they held a number of shares of Common Stock equal to the then-effective Conversion Rate Rate, multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. Neither the Trustee not the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether an issuance or distribution described in this clause (ii) has occurred▇▇▇▇▇▇.
(iiiii) If (A) a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close of business on the Business Day immediately preceding August October 15, 20292030, regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section 15.02, or (B) if the Company is a party to a Share Exchange Event (other than a Share Exchange Event that is solely for the purpose of changing the Company’s jurisdiction of organization that (x) does not constitute a Fundamental Change or a Make-Whole Fundamental ChangeChange and (y) results in a reclassification, conversion or exchange of outstanding shares of Common Stock solely into shares of common stock of the surviving entity and such common stock becomes Reference Property for the Notes) that occurs prior to the close of business on the Business Day immediately preceding August October 15, 20292030 (each such Fundamental Change, in each caseMake-Whole Fundamental Change or Share Exchange Event, pursuant to which the Common Stock would be converted into cash, securities or other assetsa “Corporate Event”), all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the effective date of the transaction such Corporate Event until the earlier of (x) 35 Trading Days after the effective date of the Corporate Event (or, if the Company gives notice after the effective date of such transaction Corporate Event, until 35 Trading Days after the date the Company gives notice of such Corporate Event) or, if such transaction Corporate Event also constitutes a Fundamental Change (other than an Exempted Fundamental Change), until the close of business on the Business Day immediately preceding the related Fundamental Change Repurchase Date and (y) the second Scheduled Trading close of business on the Business Day immediately preceding the Maturity Date. The Company shall notify in writing Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than in writing as promptly as practicable following the effective date of such transaction. Neither Corporate Event, but in no event later than two Business Days after the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination effective date of whether a Fundamental Change or a Make-Whole Fundamental Change has occurredsuch Corporate Event.
(iiiiv) Prior to the close of business on the Business Day immediately preceding August October 15, 20292030, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar quarter commencing after the calendar quarter ending on March 31September 30, 2025 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day. The Company shall determine at the beginning of each calendar quarter commencing after March 31September 30, 2025 whether the Notes may be surrendered for conversion in accordance with this clause (iv) and shall provide prompt written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) if the Notes become convertible in accordance with this clause (iv). Neither the Trustee nor the Conversion Agent (if other than the Trustee) shall have any duty to determine or verify such determination by the Company’s Company pursuant to this clause (iv) or any similar determination of whether by the Company that the Notes have become convertible in accordance with any condition set forth in this clause (iv) has been metSection 14.01(b).
(ivA) If the Company calls any or all of the Notes Note for redemption Redemption pursuant to Article 16 prior to 16, the Holder may convert such Note (or a portion thereof) called for Redemption at any time from, and including, the Redemption Notice Date until the close of business on the Business Trading Day immediately preceding August 15the related Redemption Date, 2029or, then if the Company fails to pay the Redemption Price, such later date on which the Company pays or duly provides for the Redemption Price. If the Company has designated a Redemption Date pursuant to Article 16, a Holder may surrender that complies with the requirements for conversion described herein shall be deemed to have delivered a notice of its election not to have its Notes so redeemed.
(B) If the Company elects to redeem less than all of the outstanding Notes pursuant to Article 16, and the Holder of any Note (or any part owner of such of its Notes as called for redemption for conversion at a beneficial interest in any time prior Global Note) is reasonably not able to determine, before the close of business on the second Scheduled 41st Trading Day prior to immediately before the related Redemption Date, even if whether such Note or beneficial interest, as applicable, is to be redeemed pursuant to such Redemption (and, as a result thereof, convertible in accordance with the Notes are not otherwise convertible at provisions of this Indenture), then such time. After that timeHolder or owner, the right as applicable, shall be entitled to convert such Notes pursuant to this Section 14.01(b)(v) shall expireNote or beneficial interest, as applicable, at any time before the close of business on the Trading Day immediately preceding such Redemption Date, unless the Company defaults in the payment of the Redemption Price, in which case a such Holder of Notes may or owner, as applicable, shall be entitled to convert its Notes such Note or beneficial interest, as applicable, until the Redemption Price has been paid or duly provided for, and each such conversion shall be deemed to be of a Note called for Redemption for the purposes of this Section 14.01(b)(v), Section 14.03 and Section 16.01.
Appears in 1 contract
Sources: Indenture (Firstenergy Corp)
Conversion Privilege. (a) Subject to and upon compliance with the provisions of this Article 14, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the Business Day immediately preceding August June 15, 2029 2024 under the circumstances and during the periods set forth in Section 14.01(b), and (ii) regardless of the conditions described in Section 14.01(b), on or after August June 15, 2029 2024 and prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 62.3539 8.8999 shares of Common Stock (subject to adjustment as provided in this Article 14, the “Conversion Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.02, the “Conversion Obligation”).
(ab) (i) Prior to the close of business on the Business Day immediately preceding August June 15, 20292024, a Holder may surrender all or any portion of its Notes for conversion at any time during the five Business Day period immediately after any five ten consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this subsection (b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on each such Trading Day and the Conversion Rate on each such Trading Day. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this subsection (b)(i) and the definition of Trading Price set forth in this Indenture. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes unless the Company has requested such determination, and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes) unless a Holder of at least $1,000,000 3,000,000 aggregate principal amount of Notes requests in writing that the Company make such a determination and provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the Conversion Rate on such Trading Day, at which time the Company shall instruct three nationally recognized securities dealers to deliver bids and instruct the Bid Solicitation Agent (if other than the Company) to determine, or if the Company is acting as Bid Solicitation Agent, the Company shall determine, the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not not, when the Company is required to, instruct the Bid Solicitation Agent to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentence, or if the Company instructs the Bid Solicitation Agent to obtain bids and the Bid Solicitation Agent fails to make such determination, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, then, in either case, the Trading Price per $1,000 principal amount of Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company shall so notify in writing the Holders, the Trustee and the Conversion Agent (if other than the Trustee). If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate for such date, the Company shall so notify in writing the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee).
(i) If, prior to the close of business on the Business Day immediately preceding August 15, 2029, and thereafter neither the Company elects to:
(A) issue to all or substantially all holders of nor the Common Stock any rights, options or warrants (other than in connection with a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock) entitling them, for a period of not more than 45 calendar days after the announcement date of such issuance, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance; or
(B) distribute to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase securities of the Company (other than pursuant to a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock), which distribution has a per share value, as reasonably determined by the Board of Directors, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution, then, in either case, the Company shall notify in writing all Holders of the Notes, the Trustee and the Conversion Bid Solicitation Agent (if other than the TrusteeCompany) at least 30 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan, no later than the Business Day after the Company becomes aware that such separation has occurred or will occur); provided, however, that if the Company elects Physical Settlement (to the extent that the Company has not elected another Settlement Method to apply, including pursuant to Section 14.02) in the applicable notice in respect of any conversions that occurs from, and including, the date the Company provides such notice to, and including, the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or issuance (or, if earlier, the date the Company announces that such issuance or distribution will not take place) (the “Distribution Trigger Irrevocable Physical Settlement Period”), the Company shall be permitted to provide no less than 10 Scheduled Trading Days’ notice prior to the Ex-Dividend Date for the applicable issuance or distribution, in which case the Company shall be required to settle all conversions of Notes with a Conversion Date occurring during solicit bids (or determine the Distribution Trigger Irrevocable Physical Settlement Period by Physical Settlement, and the Company shall describe the same in such notice. Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at any time until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take place, in each case, even if the Notes are not otherwise convertible at such time. Notwithstanding the foregoing, Holders may not convert their Notes under this Section 14.01(b)(ii) if they participate (other than in the case of a share split or share combination) at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described under this Section 14.01(b)(ii)(A) or (B) without having to convert their Notes as if they held a number of shares of Common Stock equal to the then-effective Conversion Rate multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. Neither the Trustee not the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether an issuance or distribution described in this clause (ii) has occurred.
(ii) If a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section 15.02, or if the Company is a party to a Share Exchange Event (other than a Share Exchange Event that is solely for the purpose of changing the Company’s jurisdiction of organization that does not constitute a Fundamental Change or Make-Whole Fundamental Change) that occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, in each case, pursuant to which the Common Stock would be converted into cash, securities or other assets, all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the effective date of the transaction until the earlier of (x) 35 Trading Days after the effective date of such transaction or, if such transaction also constitutes a Fundamental Change, until the close of business on the Business Day immediately preceding the related Fundamental Change Repurchase Date and (y) the second Scheduled Trading Day immediately preceding the Maturity Date. The Company shall notify in writing Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the effective date of such transaction. Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether a Fundamental Change or a Make-Whole Fundamental Change has occurred.
(iii) Prior to the close of business on the Business Day immediately preceding August 15, 2029, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar quarter commencing after the calendar quarter ending on March 31, 2025 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day. The Company shall determine at the beginning of each calendar quarter commencing after March 31, 2025 whether the Notes may be surrendered for conversion in accordance with this clause (iv) and shall provide written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) if the Notes become convertible in accordance with this clause (iv). Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether the condition as set forth in this clause Indenture) again until a new Holder request is made as provided in this subsection (iv) has been metb)(i).
(iv) If the Company calls any or all of the Notes for redemption pursuant to Article 16 prior to the close of business on the Business Day immediately preceding August 15, 2029, then a Holder may surrender all or any part of such of its Notes as called for redemption for conversion at any time prior to the close of business on the second Scheduled Trading Day prior to the Redemption Date, even if the Notes are not otherwise convertible at such time. After that time, the right to convert such Notes pursuant to this Section 14.01(b)(v) shall expire, unless the Company defaults in the payment of the Redemption Price, in which case a Holder of Notes may convert its Notes until the Redemption Price has been paid or duly provided for.
Appears in 1 contract
Sources: Indenture (Everbridge, Inc.)
Conversion Privilege. (a) Subject to and upon compliance with the provisions of this Article 14, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the Business Day immediately preceding August October 15, 2029 2028 under the circumstances and during the periods set forth in Section 14.01(b), and (ii) regardless of the conditions described in Section 14.01(b), on or after August October 15, 2029 2028 and prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 62.3539 20.9275 shares of Common Stock (subject to adjustment as provided in this Article 14, the “Conversion Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.02, the “Conversion Obligation”).
(a) (i) Prior to the close of business on the Business Day immediately preceding August October 15, 20292028, a Holder may surrender all or any portion of its Notes for conversion at any time during the five consecutive Business Day period immediately after any five ten consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this subsection (b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on each such Trading Day and the Conversion Rate on each such Trading Day. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this subsection (b)(i) and the definition of Trading Price set forth in this Indenture. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes unless the Company has requested such determination, and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes) unless a Holder or Holders of at least $1,000,000 aggregate 5,000,000 principal amount of Notes requests in writing that the Company make such a determination and provides aggregate provide(s) the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the Conversion Rate on such Trading Day, at which time the Company shall instruct three nationally recognized securities dealers to deliver bids and instruct the Bid Solicitation Agent (if other than the Company) in writing to determine, or if the Company is acting as Bid Solicitation Agent, the Company shall determine, the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not not, when the Company is required to, instruct the Bid Solicitation Agent to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentence, or if the Company instructs gives such instruction to the Bid Solicitation Agent to obtain bids and the Bid Solicitation Agent fails to make such determination, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, then, in either case, the Trading Price per $1,000 principal amount of Notes on any date shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company shall promptly so notify in writing the Holders, the Trustee and the Conversion Agent (if other than the Trustee)) in writing. Any such determination shall be conclusive absent manifest error. If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate for such date, the Company shall promptly so notify in writing the Holders of the NotesHolders, the Trustee and the Conversion Agent (if other than the Trustee) in writing and thereafter neither the Company nor the Bid Solicitation Agent (if other than the Company) shall be required to solicit bids (or determine the Trading Price of the Notes as set forth in this Indenture) again unless a new Holder request is made as provided in this subsection (b)(i). Neither the Trustee nor the Bid Solicitation Agent (if other than the Company) shall have any liability or responsibility for any Trading Price or related information or the accuracy thereof.
(iii) If, prior to the close of business on the Business Day immediately preceding August October 15, 20292028, the Company elects to:
(A) issue distribute to all or substantially all holders of the Common Stock any rights, options or warrants (other than in connection with a stockholder rights plan so long as prior to the separation of such rights have not separated from the shares of the Common Stock) entitling them, for a period of not more than 45 60 calendar days after the announcement date of such issuancedistribution, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuancedistribution; or
(B) distribute to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase securities of the Company (other than pursuant to in connection with a stockholder rights plan so long as prior to separation of such rights have not separated from the shares of the Common Stock), which distribution has a per share value, as reasonably determined by the Board of DirectorsDirectors in good faith, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution, then, in either case, the Company shall notify in writing all Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) in writing at least 30 46 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan, no later than the Business Day as soon as reasonably practicable after the Company becomes aware that such separation or triggering event has occurred or will occur); provided, however, that if the Company elects Physical Settlement (to the extent that the Company has not elected another Settlement Method to apply, including pursuant to Section 14.02) in the applicable notice in respect of any conversions that occurs from, and including, the date the Company provides such notice to, and including, the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or issuance (or, if earlier, the date the Company announces that such issuance or distribution will not take place) (the “Distribution Trigger Irrevocable Physical Settlement Period”), the Company shall be permitted to provide no less than 10 Scheduled Trading Days’ notice prior to the Ex-Dividend Date for the applicable issuance or distribution, in which case the Company shall be required to settle all conversions of Notes with a Conversion Date occurring during the Distribution Trigger Irrevocable Physical Settlement Period by Physical Settlement, and the Company shall describe the same in such notice. Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at any time until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take place, in each case, even if the Notes are not otherwise convertible at such time. Notwithstanding the foregoing, ; provided that Holders may not convert their Notes under pursuant to this Section 14.01(b)(iisubsection (b)(ii) if they participate (other than in the case of a share split or share combination) participate, at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described under this Section 14.01(b)(ii)(Ain clause (A) or (B) of this subsection (b)(ii) without having to convert their Notes as if they held a number of shares of Common Stock equal to the then-effective Conversion Rate Rate, multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. Neither the Trustee not the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether an issuance or distribution described in this clause (ii) has occurred▇▇▇▇▇▇.
(iiiii) If (A) a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close of business on the Business Day immediately preceding August October 15, 20292028, regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section 15.02, or (B) if the Company is a party to a Share Exchange Event (other than a Share Exchange Event that is solely for the purpose of changing the Company’s jurisdiction of organization that (x) does not constitute a Fundamental Change or a Make-Whole Fundamental ChangeChange and (y) results in a reclassification, conversion or exchange of outstanding shares of Common Stock solely into shares of common stock of the surviving entity and such common stock becomes Reference Property for the Notes) that occurs prior to the close of business on the Business Day immediately preceding August October 15, 20292028 (each such Fundamental Change, in each caseMake-Whole Fundamental Change or Share Exchange Event, pursuant to which the Common Stock would be converted into cash, securities or other assetsa “Corporate Event”), all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the effective date of the transaction such Corporate Event until the earlier of (x) 35 Trading Days after the effective date of the Corporate Event (or, if the Company gives notice after the effective date of such transaction Corporate Event, until 35 Trading Days after the date the Company gives notice of such Corporate Event) or, if such transaction Corporate Event also constitutes a Fundamental Change (other than an Exempted Fundamental Change), until the close of business on the Business Day immediately preceding the related Fundamental Change Repurchase Date and (y) the second Scheduled Trading close of business on the Business Day immediately preceding the Maturity Date. The Company shall notify in writing Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than in writing as promptly as practicable following the effective date of such transaction. Neither Corporate Event, but in no event later than two Business Days after the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination effective date of whether a Fundamental Change or a Make-Whole Fundamental Change has occurredsuch Corporate Event.
(iiiiv) Prior to the close of business on the Business Day immediately preceding August October 15, 20292028, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar quarter commencing after the calendar quarter ending on March 31September 30, 2025 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day. The Company shall determine at the beginning of each calendar quarter commencing after March 31September 30, 2025 whether the Notes may be surrendered for conversion in accordance with this clause (iv) and shall provide prompt written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) if the Notes become convertible in accordance with this clause (iv). Neither the Trustee nor the Conversion Agent (if other than the Trustee) shall have any duty to determine or verify such determination by the Company’s Company pursuant to this clause (iv) or any similar determination of whether by the Company that the Notes have become convertible in accordance with any condition set forth in this clause (iv) has been metSection 14.01(b).
(iv) If the Company calls any or all of the Notes for redemption pursuant to Article 16 prior to the close of business on the Business Day immediately preceding August 15, 2029, then a Holder may surrender all or any part of such of its Notes as called for redemption for conversion at any time prior to the close of business on the second Scheduled Trading Day prior to the Redemption Date, even if the Notes are not otherwise convertible at such time. After that time, the right to convert such Notes pursuant to this Section 14.01(b)(v) shall expire, unless the Company defaults in the payment of the Redemption Price, in which case a Holder of Notes may convert its Notes until the Redemption Price has been paid or duly provided for.
Appears in 1 contract
Sources: Indenture (Firstenergy Corp)
Conversion Privilege. (a) Subject to and upon compliance with the provisions of this Article 14, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the Business Day immediately preceding August 15June 1, 2029 2028 under the circumstances and during the periods set forth in Section 14.01(b), and (ii) regardless of the conditions described in Section 14.01(b), on or after August 15June 1, 2029 2028 and prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 62.3539 41.9054 shares of Common Stock (subject to adjustment as provided in this Article 14, the “Conversion Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.02, the “Conversion Obligation”).
(a) (i) Prior to the close of business on the Business Day immediately preceding August 15June 1, 20292028, a Holder may surrender all or any portion of its Notes for conversion at any time during the five Business Day period immediately after any five ten consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this subsection (b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on each such Trading Day and the Conversion Rate on each such Trading Day. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this subsection (b)(i) and the definition of Trading Price set forth in this Indenture. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes unless the Company has requested such determination, and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes) unless a Holder or Holders of at least $1,000,000 aggregate 2,000,000 principal amount of Notes requests in writing that the Company make such a determination and provides aggregate provide(s) the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the Conversion Rate on such Trading Day, at which time the Company shall instruct three nationally recognized securities dealers to deliver bids and instruct the Bid Solicitation Agent (if other than the Company) in writing to determine, or if the Company is acting as Bid Solicitation Agent, the Company shall determine, the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not not, when the Company is required to, instruct the Bid Solicitation Agent to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentence, or if the Company instructs gives such instruction to the Bid Solicitation Agent to obtain bids and the Bid Solicitation Agent fails to make such determination, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, then, in either case, the Trading Price per $1,000 principal amount of Notes on any date shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company shall so notify in writing the Holders, the Trustee and the Conversion Agent (if other than the Trustee)) in writing. Any such determination shall be conclusive absent manifest error. If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate for such date, the Company shall so notify in writing the Holders of the NotesHolders, the Trustee and the Conversion Agent (if other than the Trustee) in writing and thereafter neither the Company nor the Bid Solicitation Agent (if other than the Company) shall be required to solicit bids (or determine the Trading Price of the Notes as set forth in this Indenture) again unless a new Holder request is made as provided in this subsection (b)(i). Neither the Trustee nor the Solicitation Agent (if other than the Company) shall have any liability or responsibility for any Trading Price or related information or the accuracy thereof.
(iii) If, prior to the close of business on the Business Day immediately preceding August 15June 1, 20292028, the Company elects to:
(A) issue distribute to all or substantially all holders of the Common Stock any rights, options or warrants (other than in connection with a stockholder rights plan so long as prior to the separation of such rights have not separated from the shares of the Common Stock) entitling them, for a period of not more than 45 60 calendar days after the announcement date of such issuancedistribution, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuancedistribution; or
(B) distribute to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase securities of the Company (other than pursuant to in connection with a stockholder rights plan so long as prior to separation of such rights have not separated from the shares of the Common Stock), which distribution has a per share value, as reasonably determined by the Board of DirectorsCompany in good faith, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution, then, in either case, the Company shall notify in writing all Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) in writing at least 30 46 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan, no later than the Business Day as soon as reasonably practicable after the Company becomes aware that such separation or triggering event has occurred or will occur); provided, however, that if the Company elects Physical Settlement (to the extent that the Company has not elected another Settlement Method to apply, including pursuant to Section 14.02) in the applicable notice in respect of any conversions that occurs from, and including, the date the Company provides such notice to, and including, the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or issuance (or, if earlier, the date the Company announces that such issuance or distribution will not take place) (the “Distribution Trigger Irrevocable Physical Settlement Period”), the Company shall be permitted to provide no less than 10 Scheduled Trading Days’ notice prior to the Ex-Dividend Date for the applicable issuance or distribution, in which case the Company shall be required to settle all conversions of Notes with a Conversion Date occurring during the Distribution Trigger Irrevocable Physical Settlement Period by Physical Settlement, and the Company shall describe the same in such notice. Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at any time until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take place, in each case, even if the Notes are not otherwise convertible at such time. Notwithstanding the foregoing, ; provided that Holders may not convert their Notes under pursuant to this Section 14.01(b)(iisubsection (b)(ii) if they participate (other than in the case of a share split or share combination) participate, at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described under this Section 14.01(b)(ii)(Ain clause (A) or (B) of this subsection (b)(ii) without having to convert their Notes as if they held a number of shares of Common Stock equal to the then-effective Conversion Rate Rate, multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. Neither the Trustee not the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether an issuance or distribution described in this clause (ii) has occurred.
(iiiii) If (A) a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close of business on the Business Day immediately preceding August 15June 1, 20292028, regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section 15.02, or (B) if the Company is a party to a Share Exchange Event (other than a Share Exchange Event that is solely for the purpose of changing the Company’s jurisdiction of organization that (x) does not constitute a Fundamental Change or a Make-Whole Fundamental ChangeChange and (y) results in a reclassification, conversion or exchange of outstanding shares of Common Stock solely into shares of common stock of the surviving entity and such common stock becomes Reference Property for the Notes) that occurs prior to the close of business on the Business Day immediately preceding August 15June 1, 20292028, in (each casesuch Fundamental Change, pursuant to which the Common Stock would be converted into cashMake-Whole Fundamental Change or Share Exchange Event, securities or other assetsa “Corporate Event”), all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the effective date of the transaction such Corporate Event until the earlier of (x) 35 Trading Days after the effective date of the Corporate Event (or, if the Company gives notice after the effective date of such transaction Corporate Event, until 35 Trading Days after the date the Company gives notice of such Corporate Event) or, if such transaction Corporate Event also constitutes a Fundamental Change (other than an Exempted Fundamental Change), until the close of business on the Business Day immediately preceding the related Fundamental Change Repurchase Date and (y) the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date. The Company shall notify in writing Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than in writing as promptly as practicable following the effective date of such transaction. Neither Corporate Event, but in no event later than one Business Day after the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination effective date of whether a Fundamental Change or a Make-Whole Fundamental Change has occurredsuch Corporate Event.
(iiiiv) Prior to the close of business on the Business Day immediately preceding August 15June 1, 20292028, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar quarter commencing after the calendar quarter ending on March 31, 2025 2022 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day. The Company shall determine at the beginning of each calendar quarter commencing after March 31, 2025 2022 whether the Notes may be surrendered for conversion in accordance with this clause (iv) and shall provide written notice to notify the Holders, the Trustee and the Conversion Agent (if other than the Trustee) if the Notes become convertible in accordance with this clause (iv). Neither the Trustee nor the Conversion Agent (if other than the Trustee) shall have any duty to determine or verify such determination by the Company’s Company pursuant to this clause (iv) or any similar determination of whether by the Company that the Notes have become convertible in accordance with any condition set forth in this clause (iv) has been metSection 14.01(b).
(ivv) If the Company calls any or all of the Notes for redemption pursuant to Article 16 prior to the close of business on the Business Day immediately preceding August 15, 202916, then a Holder may surrender all or any part of such portion of its Called Notes as called for redemption for conversion at any time prior to the close of business on the second Scheduled Trading Day prior to immediately preceding the Redemption Date, even if the Called Notes are not otherwise convertible at such time. After that time, the right to convert such Called Notes pursuant to this Section 14.01(b)(v) on account of the Company’s delivery of a Notice of Redemption shall expire, unless the Company defaults in the payment of the Redemption Price, in which case a Holder of Called Notes may convert all or a portion of its Called Notes until the Redemption Price has been paid or duly provided for.. If the Company elects to redeem fewer than all of the outstanding Notes for redemption pursuant to Article 16, and the Holder of any Note (or any owner of
Appears in 1 contract
Sources: Indenture (Array Technologies, Inc.)
Conversion Privilege. (a) Subject to and upon compliance with the provisions of this Article Article 14, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral multiple thereof) of such Note Note, (i) subject to satisfaction of the conditions described in Section Section 14.01(b), at any time prior to the close of business on the Business Day immediately preceding August 15December 1, 2029 2026 under the circumstances and during the periods set forth in Section Section 14.01(b), and (ii) regardless of the conditions described in Section Section 14.01(b), on or after August 15December 1, 2029 2026 and prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 62.3539 4.1258 shares of Common Stock (subject to adjustment as provided in this Article Article 14, the “Conversion Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section Section 14.02, the “Conversion Obligation”).
(ab) (i) Prior to the close of business on the Business Day immediately preceding August 15December 1, 20292026, a Holder may surrender all or any portion of its Notes for conversion at any time during the five Business Day period immediately after any five ten consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this subsection (b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on each such Trading Day and the Conversion Rate on each such Trading Day. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this subsection (b)(i) and the definition of Trading Price set forth in this Indenture. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes pursuant to this subsection (b)(i) and the definition of Trading Price set forth in this Indenture unless the Company has requested such determination, and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000 principal amount of NotesPrice) unless a Holder of at least $1,000,000 10,000,000 aggregate principal amount of Notes requests in writing that the Company make such a determination and provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the Conversion Rate on and such Holder requests in writing that the Company request that the Bid Solicitation Agent determine or, if the Company is acting as Bid Solicitation Agent, requests that the Company determine, the Trading DayPrice of the Notes. At such time, at which time the Company shall instruct three nationally recognized securities dealers to deliver bids and instruct the Bid Solicitation Agent (if other than the Company) to determine, or or, if the Company is acting as Bid Solicitation Agent, the Company shall determine, the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not shall instruct the three independent nationally recognized securities dealers to deliver bids to the Bid Solicitation Agent to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentence, or if the Company instructs the Bid Solicitation Agent to obtain bids and the Bid Solicitation Agent fails to make such determination, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, then, in either case, the Trading Price per $1,000 principal amount of Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate on each Trading Day of such failureAgent. If the Trading Price condition set forth above has been met, the Company shall so notify in writing the Holders, the Trustee and the Conversion Agent (if other than the Trustee). If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate for such date, the Company shall so notify in writing the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee).
(i) If, prior to the close of business on the Business Day immediately preceding August 15, 2029, the Company elects to:
(A) issue to all or substantially all holders of the Common Stock any rights, options or warrants (other than in connection with a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock) entitling them, for a period of not more than 45 calendar days after the announcement date of such issuance, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance; or
(B) distribute to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase securities of the Company (other than pursuant to a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock), which distribution has a per share value, as reasonably determined by the Board of Directors, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution, then, in either case, the Company shall notify in writing all Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) at least 30 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan, no later than the Business Day after the Company becomes aware that such separation has occurred or will occur); provided, however, that if the Company elects Physical Settlement (to the extent that the Company has not elected another Settlement Method to apply, including pursuant to Section 14.02) in the applicable notice in respect of any conversions that occurs from, and including, the date the Company provides such notice to, and including, the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or issuance (or, if earlier, the date the Company announces that such issuance or distribution will not take place) (the “Distribution Trigger Irrevocable Physical Settlement Period”), the Company shall be permitted to provide no less than 10 Scheduled Trading Days’ notice prior to the Ex-Dividend Date for the applicable issuance or distribution, in which case the Company shall be required to settle all conversions of Notes with a Conversion Date occurring during the Distribution Trigger Irrevocable Physical Settlement Period by Physical Settlement, and the Company shall describe the same in such notice. Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at any time until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take place, in each case, even if the Notes are not otherwise convertible at such time. Notwithstanding the foregoing, Holders may not convert their Notes under this Section 14.01(b)(ii) if they participate (other than in the case of a share split or share combination) at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described under this Section 14.01(b)(ii)(A) or (B) without having to convert their Notes as if they held a number of shares of Common Stock equal to the then-effective Conversion Rate multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. Neither the Trustee not the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether an issuance or distribution described in this clause (ii) has occurred.
(ii) If a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section 15.02, or if the Company is a party to a Share Exchange Event (other than a Share Exchange Event that is solely for the purpose of changing the Company’s jurisdiction of organization that does not constitute a Fundamental Change or Make-Whole Fundamental Change) that occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, in each case, pursuant to which the Common Stock would be converted into cash, securities or other assets, all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the effective date of the transaction until the earlier of (x) 35 Trading Days after the effective date of such transaction or, if such transaction also constitutes a Fundamental Change, until the close of business on the Business Day immediately preceding the related Fundamental Change Repurchase Date and (y) the second Scheduled Trading Day immediately preceding the Maturity Date. The Company shall notify in writing Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the effective date of such transaction. Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether a Fundamental Change or a Make-Whole Fundamental Change has occurred.
(iii) Prior to the close of business on the Business Day immediately preceding August 15, 2029, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar quarter commencing after the calendar quarter ending on March 31, 2025 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day. The Company shall determine at the beginning of each calendar quarter commencing after March 31, 2025 whether the Notes may be surrendered for conversion in accordance with this clause (iv) and shall provide written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) if the Notes become convertible in accordance with this clause (iv). Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether the condition set forth in this clause (iv) has been met.
(iv) If the Company calls any or all of the Notes for redemption pursuant to Article 16 prior to the close of business on the Business Day immediately preceding August 15, 2029, then a Holder may surrender all or any part of such of its Notes as called for redemption for conversion at any time prior to the close of business on the second Scheduled Trading Day prior to the Redemption Date, even if the Notes are not otherwise convertible at such time. After that time, the right to convert such Notes pursuant to this Section 14.01(b)(v) shall expire, unless the Company defaults in the payment of the Redemption Price, in which case a Holder of Notes may convert its Notes until the Redemption Price has been paid or duly provided for.
Appears in 1 contract
Sources: Indenture (Teladoc Health, Inc.)
Conversion Privilege. (a) Subject to and upon compliance with the provisions of this Article Article 14, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section Section 14.01(b), at any time prior to the close of business on the Business Day immediately preceding August 15September 1, 2029 2028 under the circumstances and during the periods set forth in Section Section 14.01(b), and (ii) regardless of the conditions described in Section Section 14.01(b), on or after August 15September 1, 2029 2028 and prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 62.3539 13.7848 shares of Common Stock (subject to adjustment as provided in this Article Article 14, the “Conversion Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section Section 14.02, the “Conversion Obligation”).
(a) (i) Prior to the close of business on the Business Day immediately preceding August 15September 1, 20292028, a Holder may surrender all or any portion of its Notes for conversion at any time during the five Business Day period immediately after any five ten consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this subsection (b)(i(b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on each such Trading Day and the Conversion Rate on each such Trading Day. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this subsection (b)(i) and the definition of Trading Price set forth in this Indenture. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes unless the Company has requested such determination, and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes) unless a Holder of at least $1,000,000 5,000,000 aggregate principal amount of Notes requests in writing that the Company make such a determination and provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the Conversion Rate on such Trading Day, at which time the Company shall instruct three nationally recognized securities dealers to deliver bids and instruct the Bid Solicitation Agent (if other than the Company) to determine, or if the Company is acting as Bid Solicitation Agent, the Company shall determine, the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not not, when the Company is required to, instruct the Bid Solicitation Agent to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentence, or if the Company instructs gives such instruction to the Bid Solicitation Agent to obtain bids and the Bid Solicitation Agent fails to make such determination, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, then, in either case, the Trading Price per $1,000 principal amount of Notes on any date shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company shall so notify in writing the Holders, the Trustee and the Conversion Agent (if other than the Trustee)) in writing. Any such determination shall be conclusive absent manifest error. If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate for such date, the Company shall so notify in writing the Holders of the NotesHolders, the Trustee and the Conversion Agent (if other than the Trustee) in writing and thereafter neither the Company nor the Bid Solicitation Agent (if other than the Company) shall be required to solicit bids (or determine the Trading Price of the Notes as set forth in this Indenture) again unless a new Holder request is made as provided in this subsection (b)(i).
(iii) If, prior to the close of business on the Business Day immediately preceding August 15September 1, 20292028, the Company elects to:
(A) issue distribute to all or substantially all holders of the Common Stock any rights, options or warrants (other than in connection with a stockholder rights plan so long as prior to the separation of such rights have not separated from the shares of the Common Stock) entitling them, for a period of not more than 45 60 calendar days after the announcement date of such issuancedistribution, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuancedistribution; or
(B) distribute to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase securities of the Company (other than pursuant to in connection with a stockholder rights plan so long as prior to separation of such rights have not separated from the shares of the Common Stock), which distribution has a per share value, as reasonably determined by the Board of DirectorsCompany in good faith, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution, then, in either case, the Company shall notify in writing all Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) in writing at least 30 25 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan, no later than the Business Day as soon as reasonably practicable after the Company becomes aware that such separation or triggering event has occurred or will occur); provided, however, that if the Company elects Physical Settlement (to the extent that the Company has not elected another Settlement Method to apply, including pursuant to Section 14.02) in the applicable notice in respect of any conversions that occurs from, and including, the date the Company provides such notice to, and including, the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or issuance (or, if earlier, the date the Company announces that such issuance or distribution will not take place) (the “Distribution Trigger Irrevocable Physical Settlement Period”), the Company shall be permitted to provide no less than 10 Scheduled Trading Days’ notice prior to the Ex-Dividend Date for the applicable issuance or distribution, in which case the Company shall be required to settle all conversions of Notes with a Conversion Date occurring during the Distribution Trigger Irrevocable Physical Settlement Period by Physical Settlement, and the Company shall describe the same in such notice. Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at any time until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take place, in each case, even if the Notes are not otherwise convertible at such time. Notwithstanding the foregoing, ; provided that Holders may not convert their Notes under pursuant to this Section 14.01(b)(iisubsection (b)(ii) if they participate (other than in the case of a share split or share combination) participate, at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described under this Section 14.01(b)(ii)(Ain clause (A) or (B) of this subsection (b)(ii) without having to convert their Notes as if they held a number of shares of Common Stock equal to the then-effective Conversion Rate Rate, multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. Neither the Trustee not the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether an issuance or distribution described in this clause (ii) has occurred.
(iiiii) If (A) a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close of business on the Business Day immediately preceding August 15September 1, 20292028, regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section Section 15.02, or if (B) the Company is a party to a Share Exchange Event (other than a Share Exchange Event that is solely for the purpose of changing the Company’s jurisdiction of organization that (x) does not constitute a Fundamental Change or a Make-Whole Fundamental ChangeChange and (y) results in a reclassification, conversion or exchange of outstanding shares of Common Stock solely into shares of common stock of the surviving entity and such common stock becomes Reference Property for the Notes) that occurs prior to the close of business on the Business Day immediately preceding August 15September 1, 20292028, in (each casesuch Fundamental Change, pursuant to which the Common Stock would be converted into cashMake-Whole Fundamental Change or Share Exchange Event, securities or other assetsa “Corporate Event”), all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the effective date of the transaction such Corporate Event until the earlier of (x) 35 Trading Days after the effective date of the Corporate Event (or, if the Company gives notice after the effective date of such transaction Corporate Event, until 35 Trading Days after the date the Company gives notice of such Corporate Event) or, if such transaction Corporate Event also constitutes a Fundamental Change (other than an Exempted Fundamental Change), until the close of business on the Business Day immediately preceding the related Fundamental Change Repurchase Date and (y) the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date. The Company shall notify in writing Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than in writing as promptly as practicable following the effective date of such transaction. Neither Corporate Event, but in no event later than one Business Day after the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination effective date of whether a Fundamental Change or a Make-Whole Fundamental Change has occurredsuch Corporate Event.
(iiiiv) Prior to the close of business on the Business Day immediately preceding August 15September 1, 20292028, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar quarter commencing after the calendar quarter ending on March 31, 2025 2024 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day. The Company shall determine at the beginning of each calendar quarter commencing after March 31, 2025 whether the Notes may be surrendered for conversion in accordance with this clause (iv) and shall provide written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) if the Notes become convertible in accordance with this clause (iv). Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether the condition set forth in this clause (iv) has been met.
(ivv) If the Company calls any or all of the Notes for redemption pursuant to Article 16 prior to the close of business on the Business Day immediately preceding August 15September 1, 20292028 pursuant to Article 16, then a Holder may surrender all or any part of such portion of its Called Notes as called for redemption for conversion at any time prior to the close of business on the second Scheduled Trading Day prior to immediately preceding the Redemption Date, even if the Called Notes are not otherwise convertible at such time. After that time, the right to convert such Called Notes pursuant to this Section 14.01(b)(v) on account of the Company’s delivery of a Notice of Redemption shall expire, unless the Company defaults in the payment of the Redemption Price, in which case a Holder of Called Notes may convert all or a portion of its Called Notes until the Redemption Price has been paid or duly provided for. If the Company elects to redeem fewer than all of the outstanding Notes for redemption pursuant to Article 16, and the Holder of any Note (or any owner of a beneficial interest in any Global Note) is reasonably not able to determine, prior to the close of business on the 24th Scheduled Trading Day immediately preceding the related Redemption Date, whether such Note or beneficial interest, as applicable, is to be redeemed pursuant to such redemption, then such Holder or owner, as applicable, will be entitled to convert such Note or beneficial interest, as applicable, at any time before the close of business on the Scheduled Trading Day immediately preceding such Redemption Date, unless the Company defaults in the payment of the Redemption Price, in which case such Holder or owner, as applicable, will be entitled to convert such Note or beneficial interest, as applicable, until the Redemption Price has been paid or duly provided for, and each such conversion will be deemed to be of a Note called for redemption, and such Note or beneficial interest will be deemed called for redemption solely for the purposes of such conversion (“Deemed Redemption”). If a Holder elects to convert Called Notes during the related Redemption Period, the Company will, under certain circumstances, increase the Conversion Rate for such Called Notes pursuant to Section 14.03. Accordingly, if the Company elects to redeem fewer than all of the outstanding Called Notes pursuant to Article 16, Holders of the Notes that are not Called Notes will not be entitled to convert such Notes pursuant to this Section 14.01(b)(v) and will not be entitled to an increase in the Conversion Rate on account of the Notice of Redemption for conversions of such Notes during the related Redemption Period, even if such Notes are otherwise convertible pursuant to any other provision of this Section 14.01(b).
Appears in 1 contract
Sources: Indenture (Uber Technologies, Inc)
Conversion Privilege. (a) Subject to and upon compliance with the provisions of this Article 14, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the Business Day immediately preceding August 15May 1, 2029 2024 under the circumstances and during the periods set forth in Section 14.01(b), and (ii) regardless of the conditions described in Section 14.01(b), on or after August 15May 1, 2029 2024 and prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 62.3539 5.2809 shares of Class A Common Stock (subject to adjustment as provided in this Article 14, the “Conversion Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.02, the “Conversion Obligation”).
(ab) (i) Prior to the close of business on the Business Day immediately preceding August 15May 1, 20292024, a Holder may surrender all or any portion of its Notes for conversion at any time during the five Business Day period immediately after any five consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this subsection (b)(iSection 14.01(b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Class A Common Stock on each such Trading Day and the Conversion Rate on each such Trading Day. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this subsection (b)(iSection 14.01(b)(i) and the definition of Trading Price set forth in this Indenture. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes unless the Company has requested such determinationdetermination in writing and has provided the Bid Solicitation Agent with the names and contact information of the securities dealers the Company has selected for such purpose, and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes) unless a Holder of at least $1,000,000 aggregate principal amount of Notes requests in writing that the Company make such a determination and provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Class A Common Stock on such Trading Day and the Conversion Rate on such Trading DayRate, at which time the Company shall instruct three nationally recognized securities dealers to deliver bids and instruct the Bid Solicitation Agent in writing (if other than the Company) to determine, or if the Company is acting as Bid Solicitation Agent, the Company shall determine, determine the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Bid Solicitation Agent, or if the Company is acting as Bid Solicitation Agent, the Company, determines that the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Class A Common Stock and the Conversion RateRate and the Company shall instruct the securities dealers that it has selected to provide bids to the Bid Solicitation Agent. At such time as the Company directs the Bid Solicitation Agent in writing to solicit bid quotations, the Company shall provide the Bid Solicitation Agent with the names and contact details of the three independent nationally recognized securities dealers selected by the Company, and the Company shall direct those security dealers to provide bids to the Bid Solicitation Agent. Any such determination will be conclusive absent manifest error. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not not, when the Company is required to, instruct the Bid Solicitation Agent to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentenceobtain bids, or if the Company so instructs the Bid Solicitation Agent to obtain bids and the Bid Solicitation Agent fails to make such determination, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, determination. then, in either case, the Trading Price per $1,000 principal amount of Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Class A Common Stock and the Conversion Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company shall so notify in writing the Holders, the Trustee and the Conversion Agent (if other than the Trustee)) in writing. If, at any time after the Trading Price condition set forth above has been met, the Bid Solicitation Agent, or if the Company is acting as Bid Solicitation Agent, the Company, determines that the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Class A Common Stock and the Conversion Rate for such date, the Company shall so notify in writing the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee).
(i) If, prior to the close of business on the Business Day immediately preceding August 15, 2029, the Company elects to:
(A) issue to all or substantially all holders of the Common Stock any rights, options or warrants (other than in connection with a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock) entitling them, for a period of not more than 45 calendar days after the announcement date of such issuance, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance; or
(B) distribute to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase securities of the Company (other than pursuant to a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock), which distribution has a per share value, as reasonably determined by the Board of Directors, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution, then, in either case, the Company shall notify in writing all Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) at least 30 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan, no later than the Business Day after the Company becomes aware that such separation has occurred or will occur); provided, however, that if the Company elects Physical Settlement (to the extent that the Company has not elected another Settlement Method to apply, including pursuant to Section 14.02) in the applicable notice in respect of any conversions that occurs from, and including, the date the Company provides such notice to, and including, the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or issuance (or, if earlier, the date the Company announces that such issuance or distribution will not take place) (the “Distribution Trigger Irrevocable Physical Settlement Period”), the Company shall be permitted to provide no less than 10 Scheduled Trading Days’ notice prior to the Ex-Dividend Date for the applicable issuance or distribution, in which case the Company shall be required to settle all conversions of Notes with a Conversion Date occurring during the Distribution Trigger Irrevocable Physical Settlement Period by Physical Settlement, and the Company shall describe the same in such notice. Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at any time until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take place, in each case, even if the Notes are not otherwise convertible at such time. Notwithstanding the foregoing, Holders may not convert their Notes under this Section 14.01(b)(ii) if they participate (other than in the case of a share split or share combination) at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described under this Section 14.01(b)(ii)(A) or (B) without having to convert their Notes as if they held a number of shares of Common Stock equal to the then-effective Conversion Rate multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. Neither the Trustee not the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether an issuance or distribution described in this clause (ii) has occurred.
(ii) If a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section 15.02, or if the Company is a party to a Share Exchange Event (other than a Share Exchange Event that is solely for the purpose of changing the Company’s jurisdiction of organization that does not constitute a Fundamental Change or Make-Whole Fundamental Change) that occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, in each case, pursuant to which the Common Stock would be converted into cash, securities or other assets, all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the effective date of the transaction until the earlier of (x) 35 Trading Days after the effective date of such transaction or, if such transaction also constitutes a Fundamental Change, until the close of business on the Business Day immediately preceding the related Fundamental Change Repurchase Date and (y) the second Scheduled Trading Day immediately preceding the Maturity Date. The Company shall notify in writing Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the effective date of such transaction. Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether a Fundamental Change or a Make-Whole Fundamental Change has occurred.
(iii) Prior to the close of business on the Business Day immediately preceding August 15, 2029, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar quarter commencing after the calendar quarter ending on March 31, 2025 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day. The Company shall determine at the beginning of each calendar quarter commencing after March 31, 2025 whether the Notes may be surrendered for conversion in accordance with this clause (iv) and shall provide written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) if in writing and thereafter neither the Notes become convertible in accordance with this clause (iv). Neither the Trustee Company nor the Conversion Bid Solicitation Agent shall have any duty to determine or verify (if other than the Company’s determination of whether the condition set forth ) shall be required to solicit bids again until a new Holder request is made as provided in this clause (iv) has been metSection 14.01(b)(i).
(iv) If the Company calls any or all of the Notes for redemption pursuant to Article 16 prior to the close of business on the Business Day immediately preceding August 15, 2029, then a Holder may surrender all or any part of such of its Notes as called for redemption for conversion at any time prior to the close of business on the second Scheduled Trading Day prior to the Redemption Date, even if the Notes are not otherwise convertible at such time. After that time, the right to convert such Notes pursuant to this Section 14.01(b)(v) shall expire, unless the Company defaults in the payment of the Redemption Price, in which case a Holder of Notes may convert its Notes until the Redemption Price has been paid or duly provided for.
Appears in 1 contract
Sources: Indenture (Alteryx, Inc.)
Conversion Privilege. (a) Subject to and upon compliance with the provisions of this Article 14, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral a multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the Business Day immediately preceding August December 15, 2029 2024 under the circumstances and during the periods set forth in Section 14.01(b), and (ii) regardless of the conditions described in Section 14.01(b), on or after August December 15, 2029 2024 and prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 62.3539 19.3956 shares of Common Stock (subject to adjustment as provided in this Article 14, the “Conversion Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.02, the “Conversion Obligation”).
(ab) (i) Prior to the close of business on the Business Day immediately preceding August December 15, 20292024, a Holder may surrender all or any portion of its Notes for conversion at any time during the five Business Day period immediately after any five ten consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this subsection (b)(iSection 14.01(b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on each such Trading Day and the Conversion Rate on each such Trading Day. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this subsection (b)(iSection 14.01(b)(i) and the definition of Trading Price set forth in this Indenture. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes unless the Company has requested such determinationdetermination in writing, and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes) unless a Holder of at least $1,000,000 aggregate principal amount of Notes requests in writing that the Company make such a determination and provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the Conversion Rate on such Trading DayRate, at which time the Company shall instruct three nationally recognized securities dealers to deliver bids and instruct the Bid Solicitation Agent in writing (if other than the Company) to determine, or if the Company is acting as Bid Solicitation Agent, the Company shall determine, determine the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Bid Solicitation Agent, or if the Company is acting as Bid Solicitation Agent, the Company, determines that the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate. At such time as the Company directs the Bid Solicitation Agent in writing to solicit bid quotations, the Company shall provide the Bid Solicitation Agent with the names and contact details of the three independent nationally recognized securities dealers selected by the Company, and the Company shall direct those security dealers to provide bids to the Bid Solicitation Agent. Any such determination will be conclusive absent manifest error. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not not, when the Company is required to, instruct the Bid Solicitation Agent to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentenceobtain bids, or if the Company so instructs the Bid Solicitation Agent to obtain bids and the Bid Solicitation Agent fails to make such determination, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, determination. then, in either case, the Trading Price per $1,000 principal amount of Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company shall so notify in writing the Holders, the Trustee and the Conversion Agent (if other than the Trustee)) in writing. If, at any time after the Trading Price condition set forth above has been met, the Bid Solicitation Agent, or if the Company is acting as Bid Solicitation Agent, the Company, determines that the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate for such date, the Company shall so notify in writing the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee).
(i) If, prior to the close of business on the Business Day immediately preceding August 15, 2029, the Company elects to:
(A) issue to all or substantially all holders of the Common Stock any rights, options or warrants (other than in connection with a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock) entitling them, for a period of not more than 45 calendar days after the announcement date of such issuance, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance; or
(B) distribute to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase securities of the Company (other than pursuant to a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock), which distribution has a per share value, as reasonably determined by the Board of Directors, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution, then, in either case, the Company shall notify in writing all Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) at least 30 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan, no later than the Business Day after the Company becomes aware that such separation has occurred or will occur); provided, however, that if the Company elects Physical Settlement (to the extent that the Company has not elected another Settlement Method to apply, including pursuant to Section 14.02) in the applicable notice in respect of any conversions that occurs from, and including, the date the Company provides such notice to, and including, the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or issuance (or, if earlier, the date the Company announces that such issuance or distribution will not take place) (the “Distribution Trigger Irrevocable Physical Settlement Period”), the Company shall be permitted to provide no less than 10 Scheduled Trading Days’ notice prior to the Ex-Dividend Date for the applicable issuance or distribution, in which case the Company shall be required to settle all conversions of Notes with a Conversion Date occurring during the Distribution Trigger Irrevocable Physical Settlement Period by Physical Settlement, and the Company shall describe the same in such notice. Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at any time until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take place, in each case, even if the Notes are not otherwise convertible at such time. Notwithstanding the foregoing, Holders may not convert their Notes under this Section 14.01(b)(ii) if they participate (other than in the case of a share split or share combination) at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described under this Section 14.01(b)(ii)(A) or (B) without having to convert their Notes as if they held a number of shares of Common Stock equal to the then-effective Conversion Rate multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. Neither the Trustee not the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether an issuance or distribution described in this clause (ii) has occurred.
(ii) If a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section 15.02, or if the Company is a party to a Share Exchange Event (other than a Share Exchange Event that is solely for the purpose of changing the Company’s jurisdiction of organization that does not constitute a Fundamental Change or Make-Whole Fundamental Change) that occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, in each case, pursuant to which the Common Stock would be converted into cash, securities or other assets, all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the effective date of the transaction until the earlier of (x) 35 Trading Days after the effective date of such transaction or, if such transaction also constitutes a Fundamental Change, until the close of business on the Business Day immediately preceding the related Fundamental Change Repurchase Date and (y) the second Scheduled Trading Day immediately preceding the Maturity Date. The Company shall notify in writing Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the effective date of such transaction. Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether a Fundamental Change or a Make-Whole Fundamental Change has occurred.
(iii) Prior to the close of business on the Business Day immediately preceding August 15, 2029, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar quarter commencing after the calendar quarter ending on March 31, 2025 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day. The Company shall determine at the beginning of each calendar quarter commencing after March 31, 2025 whether the Notes may be surrendered for conversion in accordance with this clause (iv) and shall provide written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) if the Notes become convertible in accordance with this clause (iv). Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether the condition set forth in this clause (iv) has been metwriting.
(iv) If the Company calls any or all of the Notes for redemption pursuant to Article 16 prior to the close of business on the Business Day immediately preceding August 15, 2029, then a Holder may surrender all or any part of such of its Notes as called for redemption for conversion at any time prior to the close of business on the second Scheduled Trading Day prior to the Redemption Date, even if the Notes are not otherwise convertible at such time. After that time, the right to convert such Notes pursuant to this Section 14.01(b)(v) shall expire, unless the Company defaults in the payment of the Redemption Price, in which case a Holder of Notes may convert its Notes until the Redemption Price has been paid or duly provided for.
Appears in 1 contract
Sources: Indenture (Chegg, Inc)
Conversion Privilege. (a) Subject to and upon compliance with the provisions of this Article 14, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is $1,000 in principal amount or an integral multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the Business Day immediately preceding August September 15, 2029 2027 under the circumstances and during the periods set forth in Section 14.01(b), and (ii) regardless of the conditions described in Section 14.01(b), on or after August September 15, 2029 2027 and prior to the close of business on the second Scheduled Trading Business Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 62.3539 12.5291 shares of Common Stock (subject to adjustment as provided in this Article 14, the “Conversion Rate”) per $1,000 in principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.02, the “Conversion Obligation”).
(ab) (i) Prior to the close of business on the Business Day immediately preceding August September 15, 20292027, a Holder may surrender all or any portion of its Notes for conversion at any time during the five Business Day period immediately after any five ten consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 in principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this subsection (b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on each such Trading Day and the Conversion Rate on each such Trading Day. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this subsection (b)(i) and the definition of Trading Price set forth in this Indenture. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 in principal amount of Notes unless the Company has requested such determination, and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000 in principal amount of Notes) unless a Holder Holders of at least $1,000,000 5,000,000 in aggregate principal amount of Notes requests in writing that the Company make such a determination and provides provide the Company with a written request and reasonable evidence that the Trading Price per $1,000 in principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the Conversion Rate on such Trading Day, at which time the Company shall instruct three nationally recognized securities dealers to deliver bids and instruct the Bid Solicitation Agent (if other than the Company) to determine, or if the Company is acting as Bid Solicitation Agent, the Company shall determine, the Trading Price per $1,000 in principal amount of Notes (in accordance with the procedures described above) beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 in principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not instruct the Bid Solicitation Agent to determine the Trading Price per $1,000 in principal amount of Notes when obligated as provided in the preceding sentence, or if the Company instructs the Bid Solicitation Agent to obtain bids and the Bid Solicitation Agent fails to make such determination, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, then, in either case, the Trading Price per $1,000 in principal amount of Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company shall so notify in writing the Holders, the Trustee and the Conversion Agent (if other than the Trustee)) in writing. Any such determination shall be conclusive absent manifest error. If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 in principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate for such date, the Company shall so notify in writing the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee).
(i) If, prior to in writing. The Company may replace the close of business on the Business Day immediately preceding August 15, 2029, the Company elects to:
(A) issue to all or substantially all holders of the Common Stock Bid Solicitation Agent with any rights, options or warrants Person (other than in connection with a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock) entitling them, for a period of not more than 45 calendar days after the announcement date of such issuance, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance; or
(B) distribute to all or substantially all holders of the Common Stock the Company’s assets, securities or rights ) by written notice to purchase securities of the Company (other than pursuant to a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock), which distribution has a per share value, as reasonably determined by the Board of Directors, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution, then, in either case, the Company shall notify in writing all Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) at least 30 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan, no later than the Business Day after the Company becomes aware that such separation has occurred or will occur); provided, however, that if the Company elects Physical Settlement (to the extent that the Company has not elected another Settlement Method to apply, including pursuant to Section 14.02) in the applicable notice in respect of any conversions that occurs from, and including, the date the Company provides such notice to, and including, the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or issuance (or, if earlier, the date the Company announces that such issuance or distribution will not take place) (the “Distribution Trigger Irrevocable Physical Settlement Period”), the Company shall be permitted to provide no less than 10 Scheduled Trading Days’ notice prior to the Ex-Dividend Date for the applicable issuance or distribution, in which case the Company shall be required to settle all conversions of Notes with a Conversion Date occurring during the Distribution Trigger Irrevocable Physical Settlement Period by Physical Settlement, and the Company shall describe the same in such notice. Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at any time until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take place, in each case, even if the Notes are not otherwise convertible at such time. Notwithstanding the foregoing, Holders may not convert their Notes under this Section 14.01(b)(ii) if they participate (other than in the case of a share split or share combination) at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described under this Section 14.01(b)(ii)(A) or (B) without having to convert their Notes as if they held a number of shares of Common Stock equal to the then-effective Conversion Rate multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. Neither the Trustee not the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether an issuance or distribution described in this clause (ii) has occurredHolders.
(ii) If a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section 15.02, or if the Company is a party to a Share Exchange Event (other than a Share Exchange Event that is solely for the purpose of changing the Company’s jurisdiction of organization that does not constitute a Fundamental Change or Make-Whole Fundamental Change) that occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, in each case, pursuant to which the Common Stock would be converted into cash, securities or other assets, all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the effective date of the transaction until the earlier of (x) 35 Trading Days after the effective date of such transaction or, if such transaction also constitutes a Fundamental Change, until the close of business on the Business Day immediately preceding the related Fundamental Change Repurchase Date and (y) the second Scheduled Trading Day immediately preceding the Maturity Date. The Company shall notify in writing Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the effective date of such transaction. Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether a Fundamental Change or a Make-Whole Fundamental Change has occurred.
(iii) Prior to the close of business on the Business Day immediately preceding August 15, 2029, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar quarter commencing after the calendar quarter ending on March 31, 2025 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day. The Company shall determine at the beginning of each calendar quarter commencing after March 31, 2025 whether the Notes may be surrendered for conversion in accordance with this clause (iv) and shall provide written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) if the Notes become convertible in accordance with this clause (iv). Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether the condition set forth in this clause (iv) has been met.
(iv) If the Company calls any or all of the Notes for redemption pursuant to Article 16 prior to the close of business on the Business Day immediately preceding August 15, 2029, then a Holder may surrender all or any part of such of its Notes as called for redemption for conversion at any time prior to the close of business on the second Scheduled Trading Day prior to the Redemption Date, even if the Notes are not otherwise convertible at such time. After that time, the right to convert such Notes pursuant to this Section 14.01(b)(v) shall expire, unless the Company defaults in the payment of the Redemption Price, in which case a Holder of Notes may convert its Notes until the Redemption Price has been paid or duly provided for.
Appears in 1 contract
Sources: Indenture (Lantheus Holdings, Inc.)
Conversion Privilege. (a) Subject to and upon compliance with the provisions of this Article 14, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral multiple thereof) of such Note (i) subject to satisfaction of the conditions described in in
Section 14.01(b14.01 (b), at any time prior to the close of business on the Business Day immediately preceding August 15, 2029 2026 under the circumstances and during the periods set forth in Section 14.01(b), and (ii) regardless of the conditions described in Section 14.01(b), on or after August 15, 2029 2026 and prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 62.3539 0.6981 shares of Common Stock (subject to adjustment as provided in this Article 14, the “Conversion Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.02, the “Conversion Obligation”).
(ab) (i) Prior to the close of business on the Business Day immediately preceding August 15, 20292026, a Holder may surrender all or any portion of its Notes for conversion at any time during the five Business Day period immediately after any five consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this subsection (b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on each such Trading Day and the Conversion Rate on each such Trading Day. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this subsection (b)(i) and the definition of Trading Price set forth in this Indenture. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes unless the Company has requested such determination, and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes) unless a Holder of at least $1,000,000 aggregate principal amount of Notes requests in writing that the Company make such a determination and provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the Conversion Rate on such Trading Day, at which time the Company shall instruct three nationally recognized securities dealers to deliver bids and instruct the Bid Solicitation Agent (if other than the Company) to determine, or if the Company is acting as Bid Solicitation Agent, the Company shall determine, the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not instruct the Bid Solicitation Agent to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentence, or if the Company instructs the Bid Solicitation Agent to obtain bids and the Bid Solicitation Agent fails to make such determination, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, then, in either case, the Trading Price per $1,000 principal amount of Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company shall so notify in writing the Holders, the Trustee and the Conversion Agent (if other than the Trustee). If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate for such date, the Company shall so notify in writing the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee).
(i) If, prior to the close of business on the Business Day immediately preceding August 15, 2029, the Company elects to:
(A) issue to all or substantially all holders of the Common Stock any rights, options or warrants (other than in connection with a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock) entitling them, for a period of not more than 45 calendar days after the announcement date of such issuance, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance; or
(B) distribute to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase securities of the Company (other than pursuant to a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock), which distribution has a per share value, as reasonably determined by the Board of Directors, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution, then, in either case, the Company shall notify in writing all Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) at least 30 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan, no later than the Business Day after the Company becomes aware that such separation has occurred or will occur); provided, however, that if the Company elects Physical Settlement (to the extent that the Company has not elected another Settlement Method to apply, including pursuant to Section 14.02) in the applicable notice in respect of any conversions that occurs from, and including, the date the Company provides such notice to, and including, the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or issuance (or, if earlier, the date the Company announces that such issuance or distribution will not take place) (the “Distribution Trigger Irrevocable Physical Settlement Period”), the Company shall be permitted to provide no less than 10 Scheduled Trading Days’ notice prior to the Ex-Dividend Date for the applicable issuance or distribution, in which case the Company shall be required to settle all conversions of Notes with a Conversion Date occurring during the Distribution Trigger Irrevocable Physical Settlement Period by Physical Settlement, and the Company shall describe the same in such notice. Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at any time until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take place, in each case, even if the Notes are not otherwise convertible at such time. Notwithstanding the foregoing, Holders may not convert their Notes under this Section 14.01(b)(ii) if they participate (other than in the case of a share split or share combination) at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described under this Section 14.01(b)(ii)(A) or (B) without having to convert their Notes as if they held a number of shares of Common Stock equal to the then-effective Conversion Rate multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. Neither the Trustee not the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether an issuance or distribution described in this clause (ii) has occurred.
(ii) If a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section 15.02, or if the Company is a party to a Share Exchange Event (other than a Share Exchange Event that is solely for the purpose of changing the Company’s jurisdiction of organization that does not constitute a Fundamental Change or Make-Whole Fundamental Change) that occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, in each case, pursuant to which the Common Stock would be converted into cash, securities or other assets, all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the effective date of the transaction until the earlier of (x) 35 Trading Days after the effective date of such transaction or, if such transaction also constitutes a Fundamental Change, until the close of business on the Business Day immediately preceding the related Fundamental Change Repurchase Date and (y) the second Scheduled Trading Day immediately preceding the Maturity Date. The Company shall notify in writing Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the effective date of such transaction. Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether a Fundamental Change or a Make-Whole Fundamental Change has occurred.
(iii) Prior to the close of business on the Business Day immediately preceding August 15, 2029, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar quarter commencing after the calendar quarter ending on March 31, 2025 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day. The Company shall determine at the beginning of each calendar quarter commencing after March 31, 2025 whether the Notes may be surrendered for conversion in accordance with this clause (iv) and shall provide written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) if the Notes become convertible in accordance with this clause (iv). Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether the condition set forth in this clause (iv) has been met.
(iv) If the Company calls any or all of the Notes for redemption pursuant to Article 16 prior to the close of business on the Business Day immediately preceding August 15, 2029, then a Holder may surrender all or any part of such of its Notes as called for redemption for conversion at any time prior to the close of business on the second Scheduled Trading Day prior to the Redemption Date, even if the Notes are not otherwise convertible at such time. After that time, the right to convert such Notes pursuant to this Section 14.01(b)(v) shall expire, unless the Company defaults in the payment of the Redemption Price, in which case a Holder of Notes may convert its Notes until the Redemption Price has been paid or duly provided for.
Appears in 1 contract
Sources: Indenture (MICROSTRATEGY Inc)
Conversion Privilege. (a) Subject to and upon compliance with the provisions of this Article 14, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the Business Day immediately preceding August 15May 1, 2029 2027 under the circumstances and during the periods set forth in Section 14.01(b), and (ii) regardless of the conditions described in Section 14.01(b), on or after August 15May 1, 2029 2027, and prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 62.3539 5.0007 shares of Common Stock (subject to adjustment as provided in this Article 14, the “Conversion Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.02, the “Conversion Obligation”).
(ab) (i) Prior to the close of business on the Business Day immediately preceding August 15May 1, 20292027, a Holder may surrender all or any portion of its Notes for conversion at any time during the five Business Day period immediately after any five ten consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this subsection (b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on each such Trading Day and the Conversion Rate on each such Trading Day. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this subsection (b)(i) and the definition of Trading Price set forth in this Indenture. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes unless the Company has requested such determination, and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes) unless a Holder of at least $1,000,000 2,000,000 aggregate principal amount of Notes requests in writing that the Company make such a determination and provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the Conversion Rate on such Trading Day, at which time the Company shall instruct three nationally recognized securities dealers to deliver bids and instruct the Bid Solicitation Agent (if other than the Company) to determine, or if the Company is acting as Bid Solicitation Agent, the Company shall determine, the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not instruct the Bid Solicitation Agent to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentence, or if the Company instructs the Bid Solicitation Agent to obtain bids and the Bid Solicitation Agent fails to make such determination, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, then, in either case, the Trading Price per $1,000 principal amount of Notes on any date shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company shall so notify in writing the Holders, the Trustee and the Conversion Agent (if other than the Trustee). If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate for such date, the Company shall so notify in writing the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee).
(i) If, prior to the close of business on the Business Day immediately preceding August 15, 2029, and thereafter neither the Company elects to:
(A) issue to all or substantially all holders of nor the Common Stock any rights, options or warrants (other than in connection with a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock) entitling them, for a period of not more than 45 calendar days after the announcement date of such issuance, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance; or
(B) distribute to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase securities of the Company (other than pursuant to a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock), which distribution has a per share value, as reasonably determined by the Board of Directors, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution, then, in either case, the Company shall notify in writing all Holders of the Notes, the Trustee and the Conversion Bid Solicitation Agent (if other than the TrusteeCompany) at least 30 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan, no later than the Business Day after the Company becomes aware that such separation has occurred or will occur); provided, however, that if the Company elects Physical Settlement (to the extent that the Company has not elected another Settlement Method to apply, including pursuant to Section 14.02) in the applicable notice in respect of any conversions that occurs from, and including, the date the Company provides such notice to, and including, the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or issuance (or, if earlier, the date the Company announces that such issuance or distribution will not take place) (the “Distribution Trigger Irrevocable Physical Settlement Period”), the Company shall be permitted to provide no less than 10 Scheduled Trading Days’ notice prior to the Ex-Dividend Date for the applicable issuance or distribution, in which case the Company shall be required to settle all conversions of Notes with solicit bids again until a Conversion Date occurring during the Distribution Trigger Irrevocable Physical Settlement Period by Physical Settlement, and the Company shall describe the same new Holder request is made as provided in such notice. Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at any time until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take place, in each case, even if the Notes are not otherwise convertible at such time. Notwithstanding the foregoing, Holders may not convert their Notes under this Section 14.01(b)(ii) if they participate (other than in the case of a share split or share combination) at the same time and upon the same terms as holders 14.01(b)(i). Any such determination of the Common Stock and solely as a result of holding the Notes, in any of the transactions described under this Section 14.01(b)(ii)(A) or (B) without having to convert their Notes as if they held a number of shares of Common Stock equal to the then-effective Conversion Rate multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. Neither the Trustee not the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether an issuance or distribution described in this clause (ii) has occurred.
(ii) If a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section 15.02, or if the Company is a party to a Share Exchange Event (other than a Share Exchange Event that is solely for the purpose of changing the Company’s jurisdiction of organization that does not constitute a Fundamental Change or Make-Whole Fundamental Change) that occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, in each case, pursuant to which the Common Stock would be converted into cash, securities or other assets, all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the effective date of the transaction until the earlier of (x) 35 Trading Days after the effective date of such transaction or, if such transaction also constitutes a Fundamental Change, until the close of business on the Business Day immediately preceding the related Fundamental Change Repurchase Date and (y) the second Scheduled Trading Day immediately preceding the Maturity Date. The Company shall notify in writing Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the effective date of such transaction. Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether a Fundamental Change or a Make-Whole Fundamental Change has occurred.
(iii) Prior to the close of business on the Business Day immediately preceding August 15, 2029, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar quarter commencing after the calendar quarter ending on March 31, 2025 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day. The Company shall determine at the beginning of each calendar quarter commencing after March 31, 2025 whether the Notes may be surrendered for conversion in accordance with this clause (iv) and Indenture shall provide written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) if the Notes become convertible in accordance with this clause (iv). Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether the condition set forth in this clause (iv) has been metbe conclusive absent manifest error.
(iv) If the Company calls any or all of the Notes for redemption pursuant to Article 16 prior to the close of business on the Business Day immediately preceding August 15, 2029, then a Holder may surrender all or any part of such of its Notes as called for redemption for conversion at any time prior to the close of business on the second Scheduled Trading Day prior to the Redemption Date, even if the Notes are not otherwise convertible at such time. After that time, the right to convert such Notes pursuant to this Section 14.01(b)(v) shall expire, unless the Company defaults in the payment of the Redemption Price, in which case a Holder of Notes may convert its Notes until the Redemption Price has been paid or duly provided for.
Appears in 1 contract
Sources: Indenture (Etsy Inc)
Conversion Privilege. (a) Subject to and upon compliance with the provisions of this Article 14, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the Business Day immediately preceding August July 15, 2029 under the circumstances and during the periods set forth in Section 14.01(b), and (ii) regardless of the conditions described in Section 14.01(b), on or after August July 15, 2029 and prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 62.3539 67.2767 shares of Common Stock (subject to adjustment as provided in this Article 14, the “Conversion Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.02, the “Conversion Obligation”).
(ab) (i) Prior to the close of business on the Business Day immediately preceding August July 15, 2029, a Holder may surrender all or any portion of its Notes for conversion at any time during the five Business Day period immediately after any five consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this subsection (b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on each such Trading Day and the Conversion Rate on each such Trading Day. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this subsection (b)(i) and the definition of Trading Price set forth in this Indenture. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes unless the Company has requested such determination, and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes) unless a Holder of at least $1,000,000 aggregate principal amount of Notes requests in writing that the Company make such a determination and provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the Conversion Rate on such Trading Day, at which time the Company shall instruct the three nationally recognized securities dealers to deliver bids and instruct the Bid Solicitation Agent (if other than the Company) to determine, or if the Company is acting as Bid Solicitation Agent, the Company shall determine, the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not instruct the Bid Solicitation Agent to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentence, or if the Company instructs the Bid Solicitation Agent to obtain bids and the Bid Solicitation Agent fails to make such determination, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, then, in either case, the Trading Price per $1,000 principal amount of Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company shall so notify in writing the Holders, the Trustee and the Conversion Agent (if other than the Trustee). If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate for such date, the Company shall so notify in writing the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee).
(i) If, prior to the close of business on the Business Day immediately preceding August 15, 2029, the Company elects to:
(A) issue to all or substantially all holders of the Common Stock any rights, options or warrants (other than in connection with a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock) entitling them, for a period of not more than 45 calendar days after the announcement date of such issuance, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance; or
(B) distribute to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase securities of the Company (other than pursuant to a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock), which distribution has a per share value, as reasonably determined by the Board of Directors, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution, then, in either case, the Company shall notify in writing all Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) at least 30 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan, no later than the Business Day after the Company becomes aware that such separation has occurred or will occur); provided, however, that if the Company elects Physical Settlement (to the extent that the Company has not elected another Settlement Method to apply, including pursuant to Section 14.02) in the applicable notice in respect of any conversions that occurs from, and including, the date the Company provides such notice to, and including, the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or issuance (or, if earlier, the date the Company announces that such issuance or distribution will not take place) (the “Distribution Trigger Irrevocable Physical Settlement Period”), the Company shall be permitted to provide no less than 10 Scheduled Trading Days’ notice prior to the Ex-Dividend Date for the applicable issuance or distribution, in which case the Company shall be required to settle all conversions of Notes with a Conversion Date occurring during the Distribution Trigger Irrevocable Physical Settlement Period by Physical Settlement, and the Company shall describe the same in such notice. Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at any time until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take place, in each case, even if the Notes are not otherwise convertible at such time. Notwithstanding the foregoing, Holders may not convert their Notes under this Section 14.01(b)(ii) if they participate (other than in the case of a share split or share combination) at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described under this Section 14.01(b)(ii)(A) or (B) without having to convert their Notes as if they held a number of shares of Common Stock equal to the then-effective Conversion Rate multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. Neither the Trustee not the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether an issuance or distribution described in this clause (ii) has occurred.
(ii) If a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section 15.02, or if the Company is a party to a Share Exchange Event (other than a Share Exchange Event that is solely for the purpose of changing the Company’s jurisdiction of organization that does not constitute a Fundamental Change or Make-Whole Fundamental Change) that occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, in each case, pursuant to which the Common Stock would be converted into cash, securities or other assets, all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the effective date of the transaction until the earlier of (x) 35 Trading Days after the effective date of such transaction or, if such transaction also constitutes a Fundamental Change, until the close of business on the Business Day immediately preceding the related Fundamental Change Repurchase Date and (y) the second Scheduled Trading Day immediately preceding the Maturity Date. The Company shall notify in writing Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the effective date of such transaction. Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether a Fundamental Change or a Make-Whole Fundamental Change has occurred.
(iii) Prior to the close of business on the Business Day immediately preceding August 15, 2029, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar quarter commencing after the calendar quarter ending on March 31, 2025 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day. The Company shall determine at the beginning of each calendar quarter commencing after March 31, 2025 whether the Notes may be surrendered for conversion in accordance with this clause (iv) and shall provide written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) if the Notes become convertible in accordance with this clause (iv). Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether the condition set forth in this clause (iv) has been met.
(iv) If the Company calls any or all of the Notes for redemption pursuant to Article 16 prior to the close of business on the Business Day immediately preceding August 15, 2029, then a Holder may surrender all or any part of such of its Notes as called for redemption for conversion at any time prior to the close of business on the second Scheduled Trading Day prior to the Redemption Date, even if the Notes are not otherwise convertible at such time. After that time, the right to convert such Notes pursuant to this Section 14.01(b)(v) shall expire, unless the Company defaults in the payment of the Redemption Price, in which case a Holder of Notes may convert its Notes until the Redemption Price has been paid or duly provided for.
Appears in 1 contract
Sources: Indenture (Riot Platforms, Inc.)
Conversion Privilege. (a) Subject to and upon compliance with the provisions of this Article 14, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the Business Day immediately preceding August March 15, 2029 2028 under the circumstances and during the periods set forth in Section 14.01(b), and (ii) regardless of the conditions described in Section 14.01(b), on or after August March 15, 2029 2028 and prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 62.3539 18.6120 shares of Common Stock (subject to adjustment as provided in this Article 14, the “Conversion Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.02, the “Conversion Obligation”).
(a) (i) Prior to the close of business on the Business Day immediately preceding August March 15, 20292028, a Holder may surrender all or any portion of its Notes for conversion at any time during the five Business Day period immediately after any five ten consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this subsection (b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on each such Trading Day and the Conversion Rate on each such Trading Day. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this subsection (b)(i) and the definition of Trading Price set forth in this Indenture. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes unless the Company has requested such determination, and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes) unless a Holder of at least $1,000,000 5,000,000 aggregate principal amount of Notes requests in writing that the Company make such a determination and provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the Conversion Rate on such Trading Day, at which time the Company shall instruct three nationally recognized securities dealers to deliver bids and instruct the Bid Solicitation Agent (if other than the Company) to determine, or if the Company is acting as Bid Solicitation Agent, the Company shall determine, the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not not, when the Company is required to, instruct the Bid Solicitation Agent to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentence, or if the Company instructs gives such instruction to the Bid Solicitation Agent to obtain bids and the Bid Solicitation Agent fails to make such determination, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, then, in either case, the Trading Price per $1,000 principal amount of Notes on any date shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company shall so notify in writing the Holders, the Trustee and the Conversion Agent (if other than the Trustee)) in writing. Any such determination shall be conclusive absent manifest error. If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate for such date, the Company shall so notify in writing the Holders of the NotesHolders, the Trustee and the Conversion Agent (if other than the Trustee) in writing and thereafter neither the Company nor the Bid Solicitation Agent (if other than the Company) shall be required to solicit bids (or determine the Trading Price of the Notes as set forth in this Indenture) again unless a new Holder request is made as provided in this subsection (b)(i).
(iii) If, prior to the close of business on the Business Day immediately preceding August March 15, 20292028, the Company elects to:
(A) issue distribute to all or substantially all holders of the Common Stock any rights, options or warrants (other than in connection with a stockholder rights plan so long as prior to the separation of such rights have not separated from the shares of the Common Stock) entitling them, for a period of not more than 45 60 calendar days after the announcement date of such issuancedistribution, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuancedistribution; or
(B) distribute to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase securities of the Company (other than pursuant to in connection with a stockholder rights plan so long as prior to separation of such rights have not separated from the shares of the Common Stock), which distribution has a per share value, as reasonably determined by the Board of DirectorsCompany in good faith, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution, then, in either case, the Company shall notify in writing all Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) in writing at least 30 35 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan, no later than the Business Day as soon as reasonably practicable after the Company becomes aware that such separation or triggering event has occurred or will occur); provided, however, that if the Company elects is then otherwise permitted to settle conversions of Notes by Physical Settlement (to and, for the extent that the Company avoidance of doubt, has not irrevocably elected another Settlement Method to applyfor conversions of Notes), including pursuant to Section 14.02) in the applicable notice in respect of any conversions that occurs from, and including, the date then the Company provides may instead elect to provide such notice to, and including, the close of business on the Business Day immediately preceding the at least five Scheduled Trading Days prior to such Ex-Dividend Date for such distribution or issuance (or, if earlier, the date the Company announces that such issuance or distribution will not take place) (the “Distribution Trigger Irrevocable Physical Settlement Period”), the Company shall be permitted to provide no less than 10 Scheduled Trading Days’ notice prior to the Ex-Dividend Date for the applicable issuance or distributionDate, in which case the Company shall be required to settle all conversions of Notes with a Conversion Date occurring during the Distribution Trigger Irrevocable Physical Settlement Period period on or after the date the Company provides such notice and before such Ex-Dividend Date (or, if earlier, the date the Company announces that such issuance or distribution will not take place) by Physical Settlement, and the Company shall describe the same in such notice. Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at any time until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take place, in each case, even if the Notes are not otherwise convertible at such time. Notwithstanding the foregoing, ; provided that Holders may not convert their Notes under pursuant to this Section 14.01(b)(iisubsection (b)(ii) if they participate (other than in the case of a share split or share combination) participate, at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described under this Section 14.01(b)(ii)(Ain clause (A) or (B) of this subsection (b)(ii) without having to convert their Notes as if they held a number of shares of Common Stock equal to the then-effective Conversion Rate Rate, multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. Neither the Trustee not the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether an issuance or distribution described in this clause (ii) has occurred.
(iiiii) If (A) a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close of business on the Business Day immediately preceding August March 15, 20292028, regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section 15.02, or if (B) the Company is a party to a Share Exchange Event (other than a Share Exchange Event that is solely for the purpose of changing the Company’s jurisdiction of organization that (x) does not constitute a Fundamental Change or a Make-Whole Fundamental ChangeChange and (y) results in a reclassification, conversion or exchange of outstanding shares of Common Stock solely into shares of common stock of the surviving entity and such common stock becomes Reference Property for the Notes) that occurs prior to the close of business on the Business Day immediately preceding August March 15, 20292028, in (each casesuch Fundamental Change, pursuant to which the Common Stock would be converted into cashMake-Whole Fundamental Change or Share Exchange Event, securities or other assetsa “Corporate Event”), all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the effective date of the transaction such Corporate Event until the earlier of (x) 35 Trading Days after the effective date of the Corporate Event (or, if the Company gives notice after the effective date of such transaction Corporate Event, until 35 Trading Days after the date the Company gives notice of such Corporate Event) or, if such transaction Corporate Event also constitutes a Fundamental Change (other than an Exempted Fundamental Change), until the close of business on the Business Day immediately preceding the related Fundamental Change Repurchase Date and (y) the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date. The Company shall notify in writing Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than in writing as promptly as practicable following the effective date of such transaction. Neither Corporate Event, but in no event later than one Business Day after the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination effective date of whether a Fundamental Change or a Make-Whole Fundamental Change has occurredsuch Corporate Event.
(iiiiv) Prior to the close of business on the Business Day immediately preceding August March 15, 20292028, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar quarter commencing after the calendar quarter ending on March 31September 30, 2025 2023 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day. The Company shall determine at the beginning of each calendar quarter commencing after March 31, 2025 whether the Notes may be surrendered for conversion in accordance with this clause (iv) and shall provide written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) if the Notes become convertible in accordance with this clause (iv). Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether the condition set forth in this clause (iv) has been met.
(ivv) If the Company calls any or all of the Notes for redemption Optional Redemption pursuant to Article 16 prior to the close of business on the Business Day immediately preceding August 15, 202916, then a Holder may surrender all or any part of such portion of its Called Notes as called for redemption for conversion at any time prior to the close of business on the second Scheduled Trading Day prior to immediately preceding the Redemption Date, even if the Called Notes are not otherwise convertible at such time. After that time, the right to convert such Called Notes pursuant to this Section 14.01(b)(v) on account of the Company’s delivery of a Notice of Redemption shall expire, unless the Company defaults in the payment of the Redemption Price, in which case a Holder of Called Notes may convert all or a portion of its Called Notes until the close of business on the Scheduled Trading Day immediately preceding the date on which the Redemption Price has been paid or duly provided for. If the Company elects to redeem fewer than all of the outstanding Notes pursuant to Article 16, and the Holder of any Note (or any owner of a beneficial interest in any Global Note) is reasonably not able to determine, prior to the close of business on the 34th Scheduled Trading Day immediately preceding the relevant Redemption Date (or if, as permitted by Section 16.02(a), the Company delivers a Notice of Redemption not less than 15 calendar days nor more than 65 Scheduled Trading Days prior to the related Redemption Date, then prior to close of business on the 14th calendar day immediately before the relevant Redemption Date), whether such Note or beneficial interest, as applicable, is to be redeemed pursuant to such Optional Redemption (and, as a result thereof, convertible on account of the related Notice of Redemption in accordance with the provisions of this Indenture), then such Holder or owner, as applicable, will be entitled to convert such Note or beneficial interest, as applicable, at any time during the related Redemption Period, and each such conversion will be deemed to be of a Note called for Optional Redemption, and such Note or beneficial interest will be deemed called for Optional Redemption solely for the purposes of such conversion (“Deemed Redemption”). If a Holder elects to convert Called Notes during the related Redemption Period, such conversion will be deemed “in connection with” the relevant Notice of Redemption pursuant to Section 14.03(a), and the Company will, under certain circumstances, increase the Conversion Rate for such Called Notes pursuant to Section 14.03. Accordingly, if the Company elects to redeem fewer than all of the outstanding Notes pursuant to Article 16, Holders of the Notes that are not Called Notes shall not be entitled to convert such Notes pursuant to this Section 14.01(b)(v) and shall not be entitled to an increase in the Conversion Rate on account of the Notice of Redemption for conversions of such Notes during the related Redemption Period, even if such Notes are otherwise convertible pursuant to any other provision of this Section 14.01(b).
Appears in 1 contract
Conversion Privilege. (a) Subject to and upon compliance with the provisions of this Article 14, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the Business Day immediately preceding August 15March 1, 2029 2025 under the circumstances and during the periods set forth in Section 14.01(b), and (ii) regardless of the conditions described in Section 14.01(b), on or after August 15March 1, 2029 2025 and prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 62.3539 30.0044 shares of Common Stock (subject to adjustment as provided in this Article 14, the “Conversion Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.02, the “Conversion Obligation”).
(ab) (i) Prior to the close of business on the Business Day immediately preceding August 15March 1, 20292025, a Holder may surrender all or any portion of its Notes for conversion at any time during the five (5) consecutive Business Day period immediately after any five consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this subsection (b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on each such Trading Day and the Conversion Rate on each such Trading Day. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this subsection (b)(i) and the definition of Trading Price set forth in this Indenture. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes unless the Company has requested such determinationdetermination in writing and have provided the Bid Solicitation Agent with the names and contact information of the three independent nationally recognized securities dealers the Company has selected for this purpose, and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes) unless a Holder of at least $1,000,000 aggregate principal amount of Notes requests in writing that the Company make such a determination and provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the Conversion Rate on such Trading Day, at which time the Company shall instruct three nationally recognized securities dealers to deliver bids and instruct the Bid Solicitation Agent (if other than the Company) to determine, or if the Company is acting as Bid Solicitation Agent, the Company shall determine, the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion RateRate and the Company will instruct the three independent nationally recognized securities dealers to deliver bids to the Bid Solicitation Agent. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not not, when the Company is required to, instruct the Bid Solicitation Agent to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentence, or if the Company instructs the Bid Solicitation Agent to obtain bids and the Bid Solicitation Agent fails to make such determination, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, then, in either case, the Trading Price per $1,000 principal amount of Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company shall so notify in writing the Holders, the Trustee and the Conversion Agent (if other than the Trustee)) in writing. If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate for such date, the Company shall so notify in writing the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee).
(i) If, prior to the close of business on the Business Day immediately preceding August 15, 2029, in writing and thereafter neither the Company elects to:
(A) issue to all or substantially all holders of nor the Common Stock any rights, options or warrants (other than in connection with a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock) entitling them, for a period of not more than 45 calendar days after the announcement date of such issuance, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance; or
(B) distribute to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase securities of the Company (other than pursuant to a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock), which distribution has a per share value, as reasonably determined by the Board of Directors, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution, then, in either case, the Company shall notify in writing all Holders of the Notes, the Trustee and the Conversion Bid Solicitation Agent (if other than the TrusteeCompany) at least 30 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan, no later than the Business Day after the Company becomes aware that such separation has occurred or will occur); provided, however, that if the Company elects Physical Settlement (to the extent that the Company has not elected another Settlement Method to apply, including pursuant to Section 14.02) in the applicable notice in respect of any conversions that occurs from, and including, the date the Company provides such notice to, and including, the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or issuance (or, if earlier, the date the Company announces that such issuance or distribution will not take place) (the “Distribution Trigger Irrevocable Physical Settlement Period”), the Company shall be permitted to provide no less than 10 Scheduled Trading Days’ notice prior to the Ex-Dividend Date for the applicable issuance or distribution, in which case the Company shall be required to settle all conversions of Notes with a Conversion Date occurring during solicit bids (or determine the Distribution Trigger Irrevocable Physical Settlement Period by Physical Settlement, and the Company shall describe the same in such notice. Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at any time until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take place, in each case, even if the Notes are not otherwise convertible at such time. Notwithstanding the foregoing, Holders may not convert their Notes under this Section 14.01(b)(ii) if they participate (other than in the case of a share split or share combination) at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described under this Section 14.01(b)(ii)(A) or (B) without having to convert their Notes as if they held a number of shares of Common Stock equal to the then-effective Conversion Rate multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. Neither the Trustee not the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether an issuance or distribution described in this clause (ii) has occurred.
(ii) If a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section 15.02, or if the Company is a party to a Share Exchange Event (other than a Share Exchange Event that is solely for the purpose of changing the Company’s jurisdiction of organization that does not constitute a Fundamental Change or Make-Whole Fundamental Change) that occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, in each case, pursuant to which the Common Stock would be converted into cash, securities or other assets, all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the effective date of the transaction until the earlier of (x) 35 Trading Days after the effective date of such transaction or, if such transaction also constitutes a Fundamental Change, until the close of business on the Business Day immediately preceding the related Fundamental Change Repurchase Date and (y) the second Scheduled Trading Day immediately preceding the Maturity Date. The Company shall notify in writing Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the effective date of such transaction. Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether a Fundamental Change or a Make-Whole Fundamental Change has occurred.
(iii) Prior to the close of business on the Business Day immediately preceding August 15, 2029, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar quarter commencing after the calendar quarter ending on March 31, 2025 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day. The Company shall determine at the beginning of each calendar quarter commencing after March 31, 2025 whether the Notes may be surrendered for conversion in accordance with this clause (iv) and shall provide written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) if the Notes become convertible in accordance with this clause (iv). Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether the condition as set forth in this clause Indenture) again until a new Holder request is made as provided in this subsection (iv) has been metb)(i).
(iv) If the Company calls any or all of the Notes for redemption pursuant to Article 16 prior to the close of business on the Business Day immediately preceding August 15, 2029, then a Holder may surrender all or any part of such of its Notes as called for redemption for conversion at any time prior to the close of business on the second Scheduled Trading Day prior to the Redemption Date, even if the Notes are not otherwise convertible at such time. After that time, the right to convert such Notes pursuant to this Section 14.01(b)(v) shall expire, unless the Company defaults in the payment of the Redemption Price, in which case a Holder of Notes may convert its Notes until the Redemption Price has been paid or duly provided for.
Appears in 1 contract
Sources: Indenture (Model N, Inc.)
Conversion Privilege. (a) Subject to and upon compliance with the provisions of this Article 14, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the Business Day immediately preceding August May 15, 2029 under the circumstances and during the periods set forth in Section 14.01(b), and (ii) regardless of the conditions described in Section 14.01(b), on or after August May 15, 2029 and prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 62.3539 84.5934 shares of Common Stock (subject to adjustment as provided in this Article 14, the “Conversion Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.02, the “Conversion Obligation”).
(ab) (i) Prior to the close of business on the Business Day immediately preceding August May 15, 2029, a Holder may surrender all or any portion of its Notes for conversion at any time during the five Business Day period immediately after any five ten consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this subsection (b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on each such Trading Day and the Conversion Rate on each such Trading Day. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this subsection (b)(i) and the definition of Trading Price set forth in this Indenture. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes unless the Company has requested such determinationdetermination in writing and has provided the Bid Solicitation Agent with the names and contact information of the three independent nationally recognized securities dealers the Company has selected for this purpose, and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes) unless a Holder of at least $1,000,000 2,000,000 aggregate principal amount of Notes requests in writing that the Company make such a determination and provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the Conversion Rate on such Trading Day, at which time the Company shall instruct three nationally recognized securities dealers to deliver bids and instruct the Bid Solicitation Agent (if other than the Company) to determine, or if the Company is acting as Bid Solicitation Agent, the Company shall determinedetermine (in each case, by instructing three independent nationally recognized securities dealers to deliver bids to the Bid Solicitation Agent pursuant to the definition of “Trading Price”), the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not not, when the Company is required to, instruct the Bid Solicitation Agent to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentence, or if the Company instructs the Bid Solicitation Agent to obtain bids and the Bid Solicitation Agent fails to make such determination, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, then, in either case, the Trading Price per $1,000 principal amount of Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company shall so notify in writing the Holders, the Trustee and the Conversion Agent (if other than the Trustee)) in writing. Any such determination shall be conclusive absent manifest error. If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate for such dateTrading Day, the Company shall so notify in writing the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee).
(i) If, prior to the close of business on the Business Day immediately preceding August 15, 2029, the Company elects to:
(A) issue to all or substantially all holders of the Common Stock any rights, options or warrants (other than in connection with a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock) entitling them, for a period of not more than 45 calendar days after the announcement date of such issuance, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance; or
(B) distribute to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase securities of the Company (other than pursuant to a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock), which distribution has a per share value, as reasonably determined by the Board of Directors, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution, then, in either case, the Company shall notify in writing all Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) at least 30 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan, no later than the Business Day after the Company becomes aware that such separation has occurred or will occur); provided, however, that if the Company elects Physical Settlement (to the extent that the Company has not elected another Settlement Method to apply, including pursuant to Section 14.02) in the applicable notice in respect of any conversions that occurs from, and including, the date the Company provides such notice to, and including, the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or issuance (or, if earlier, the date the Company announces that such issuance or distribution will not take place) (the “Distribution Trigger Irrevocable Physical Settlement Period”), the Company shall be permitted to provide no less than 10 Scheduled Trading Days’ notice prior to the Ex-Dividend Date for the applicable issuance or distribution, in which case the Company shall be required to settle all conversions of Notes with a Conversion Date occurring during the Distribution Trigger Irrevocable Physical Settlement Period by Physical Settlement, and the Company shall describe the same in such notice. Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at any time until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take place, in each case, even if the Notes are not otherwise convertible at such time. Notwithstanding the foregoing, Holders may not convert their Notes under this Section 14.01(b)(ii) if they participate (other than in the case of a share split or share combination) at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described under this Section 14.01(b)(ii)(A) or (B) without having to convert their Notes as if they held a number of shares of Common Stock equal to the then-effective Conversion Rate multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. Neither the Trustee not the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether an issuance or distribution described in this clause (ii) has occurredwriting.
(ii) If a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section 15.02, or if the Company is a party to a Share Exchange Event (other than a Share Exchange Event that is solely for the purpose of changing the Company’s jurisdiction of organization that does not constitute a Fundamental Change or Make-Whole Fundamental Change) that occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, in each case, pursuant to which the Common Stock would be converted into cash, securities or other assets, all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the effective date of the transaction until the earlier of (x) 35 Trading Days after the effective date of such transaction or, if such transaction also constitutes a Fundamental Change, until the close of business on the Business Day immediately preceding the related Fundamental Change Repurchase Date and (y) the second Scheduled Trading Day immediately preceding the Maturity Date. The Company shall notify in writing Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the effective date of such transaction. Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether a Fundamental Change or a Make-Whole Fundamental Change has occurred.
(iii) Prior to the close of business on the Business Day immediately preceding August 15, 2029, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar quarter commencing after the calendar quarter ending on March 31, 2025 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day. The Company shall determine at the beginning of each calendar quarter commencing after March 31, 2025 whether the Notes may be surrendered for conversion in accordance with this clause (iv) and shall provide written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) if the Notes become convertible in accordance with this clause (iv). Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether the condition set forth in this clause (iv) has been met.
(iv) If the Company calls any or all of the Notes for redemption pursuant to Article 16 prior to the close of business on the Business Day immediately preceding August 15, 2029, then a Holder may surrender all or any part of such of its Notes as called for redemption for conversion at any time prior to the close of business on the second Scheduled Trading Day prior to the Redemption Date, even if the Notes are not otherwise convertible at such time. After that time, the right to convert such Notes pursuant to this Section 14.01(b)(v) shall expire, unless the Company defaults in the payment of the Redemption Price, in which case a Holder of Notes may convert its Notes until the Redemption Price has been paid or duly provided for.
Appears in 1 contract
Sources: Indenture (WisdomTree, Inc.)
Conversion Privilege. (a) Subject to and upon compliance with the provisions of this Article 14, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the Business Day immediately preceding August 15March 1, 2029 under the circumstances and during the periods set forth in Section 14.01(b), and (ii) regardless of the conditions described in Section 14.01(b), on or after August 15March 1, 2029 and prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 62.3539 17.1378 shares of Common Stock (subject to adjustment as provided in this Article 14, the “Conversion Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.02, the “Conversion Obligation”).
(ab) (i) Prior to the close of business on the Business Day immediately preceding August 15March 1, 2029, a Holder may surrender all or any portion of its Notes for conversion at any time during the five Business Day period immediately after any five consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this subsection (b)(iSection 14.01(b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on each such Trading Day and the Conversion Rate on each such Trading DayDay (the “Trading Price Condition”). The Trading Prices shall be determined solicited by the Bid Solicitation Agent and determined by the Company pursuant to this subsection (b)(iSection 14.01(b)(i) and the definition of Trading Price set forth in this Indenture. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine solicit the Trading Price per $1,000 principal amount of Notes unless the Company has requested such determinationsolicitation in writing, and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to solicit and/or determine the Trading Price per $1,000 principal amount of Notes) unless a Holder of at least $1,000,000 3,000,000 aggregate principal amount of Notes requests in writing that the Company make such a determination and provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the Conversion Rate on such Trading DayRate, at which time the Company shall instruct three nationally recognized securities dealers to deliver bids and instruct the Bid Solicitation Agent (if other than the Company) to determinesolicit, or if the Company is acting as Bid Solicitation Agent, the Company shall determinesolicit, the Trading Price per $1,000 principal amount of Notes such bids beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion RateRate and the Company shall instruct the three independent nationally recognized securities dealers to deliver the bids to the Bid Solicitation Agent. The Company will determine the Trading Price in accordance with the bids solicited by the Bid Solicitation Agent. If the Trading Price Condition has been met on any trading day, the Company will so notify the Holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing on or within one business day of such trading day. Any such determination will be conclusive absent manifest error. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not not, when the Company is required to, instruct the Bid Solicitation Agent in writing to determine obtain the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentencethis Section 14.01(b)(i), or if the Company so instructs the Bid Solicitation Agent to obtain bids and the Bid Solicitation Agent fails to make such determinationsolicitation, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination solicitation when obligated as provided in the preceding sentencethis Section 14.01(b)(i), then, in either case, the Trading Price per $1,000 principal amount of Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate on each Trading Day of such failure. If the Trading Price condition Condition set forth above has been met, the Company shall so notify in writing the Holders, the Trustee and the Conversion Agent (if other than the Trustee)) in writing. If, at any time after the Trading Price condition Condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate for such dateTrading Day, the Company shall so notify in writing the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee).
(i) If, prior to in writing that the close of business on the Business Day immediately preceding August 15, 2029, Trading Price Condition is no longer met and thereafter neither the Company elects to:
(A) issue to all or substantially all holders of nor the Common Stock any rights, options or warrants (other than in connection with a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock) entitling them, for a period of not more than 45 calendar days after the announcement date of such issuance, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance; or
(B) distribute to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase securities of the Company (other than pursuant to a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock), which distribution has a per share value, as reasonably determined by the Board of Directors, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution, then, in either case, the Company shall notify in writing all Holders of the Notes, the Trustee and the Conversion Bid Solicitation Agent (if other than the TrusteeCompany) at least 30 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan, no later than the Business Day after the Company becomes aware that such separation has occurred or will occur); provided, however, that if the Company elects Physical Settlement (to the extent that the Company has not elected another Settlement Method to apply, including pursuant to Section 14.02) in the applicable notice in respect of any conversions that occurs from, and including, the date the Company provides such notice to, and including, the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or issuance (or, if earlier, the date the Company announces that such issuance or distribution will not take place) (the “Distribution Trigger Irrevocable Physical Settlement Period”), the Company shall be permitted to provide no less than 10 Scheduled Trading Days’ notice prior to the Ex-Dividend Date for the applicable issuance or distribution, in which case the Company shall be required to settle all conversions of Notes with a Conversion Date occurring during the Distribution Trigger Irrevocable Physical Settlement Period by Physical Settlement, and the Company shall describe the same in such notice. Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at any time solicit bids again until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take place, in each case, even if the Notes are not otherwise convertible at such time. Notwithstanding the foregoing, Holders may not convert their Notes under this Section 14.01(b)(ii) if they participate (other than in the case of a share split or share combination) at the same time and upon the same terms another qualifying request is made as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described under this Section 14.01(b)(ii)(A) or (B) without having to convert their Notes as if they held a number of shares of Common Stock equal to the then-effective Conversion Rate multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. Neither the Trustee not the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether an issuance or distribution described in this clause (ii) has occurredprovided above.
(ii) If a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section 15.02, or if the Company is a party to a Share Exchange Event (other than a Share Exchange Event that is solely for the purpose of changing the Company’s jurisdiction of organization that does not constitute a Fundamental Change or Make-Whole Fundamental Change) that occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, in each case, pursuant to which the Common Stock would be converted into cash, securities or other assets, all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the effective date of the transaction until the earlier of (x) 35 Trading Days after the effective date of such transaction or, if such transaction also constitutes a Fundamental Change, until the close of business on the Business Day immediately preceding the related Fundamental Change Repurchase Date and (y) the second Scheduled Trading Day immediately preceding the Maturity Date. The Company shall notify in writing Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the effective date of such transaction. Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether a Fundamental Change or a Make-Whole Fundamental Change has occurred.
(iii) Prior to the close of business on the Business Day immediately preceding August 15, 2029, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar quarter commencing after the calendar quarter ending on March 31, 2025 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day. The Company shall determine at the beginning of each calendar quarter commencing after March 31, 2025 whether the Notes may be surrendered for conversion in accordance with this clause (iv) and shall provide written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) if the Notes become convertible in accordance with this clause (iv). Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether the condition set forth in this clause (iv) has been met.
(iv) If the Company calls any or all of the Notes for redemption pursuant to Article 16 prior to the close of business on the Business Day immediately preceding August 15, 2029, then a Holder may surrender all or any part of such of its Notes as called for redemption for conversion at any time prior to the close of business on the second Scheduled Trading Day prior to the Redemption Date, even if the Notes are not otherwise convertible at such time. After that time, the right to convert such Notes pursuant to this Section 14.01(b)(v) shall expire, unless the Company defaults in the payment of the Redemption Price, in which case a Holder of Notes may convert its Notes until the Redemption Price has been paid or duly provided for.
Appears in 1 contract
Sources: Indenture (Cutera Inc)
Conversion Privilege. (a) Subject to and upon compliance with the provisions of this Article 14, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral a multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the Business Day immediately preceding August March 15, 2029 2026 under the circumstances and during the periods set forth in Section 14.01(b), and (ii) regardless of the conditions described in Section 14.01(b), on or after August March 15, 2029 2026 and prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 62.3539 3.3732 shares of Common Stock (subject to adjustment as provided in this Article 14, the “Conversion Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.02, the “Conversion Obligation”).
(ab) (i) Prior to the close of business on the Business Day immediately preceding August March 15, 20292026, a Holder may surrender all or any portion of its Notes for conversion at any time during the five Business Day period immediately after any five ten consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a written request by a Holder of Notes in accordance with this subsection (b)(iSection 14.01(b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on each such Trading Day and the Conversion Rate on each such Trading Day. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this subsection (b)(iSection 14.01(b)(i) and the definition of Trading Price set forth in this Indenture. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes unless the Company has requested such determinationdetermination in writing, and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes) unless a Holder of at least $1,000,000 2,000,000 aggregate principal amount of Notes requests in writing that the Company make such a determination and provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the Conversion Rate on such Trading DayRate, at which time the Company shall instruct three nationally recognized securities dealers to deliver bids and instruct the Bid Solicitation Agent in writing (if other than the Company) to determine, or if the Company is acting as Bid Solicitation Agent, the Company shall determine, determine the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate. At such time as the Company directs the Bid Solicitation Agent in writing to solicit bid quotations, the Company shall provide the Bid Solicitation Agent with the names and contact details of the three independent nationally recognized securities dealers selected by the Company, and the Company shall direct those security dealers to provide bids to the Bid Solicitation Agent. Any such determination will be conclusive absent manifest error. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not not, when the Company is required to, instruct the Bid Solicitation Agent to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentenceobtain bids, or if the Company so instructs the Bid Solicitation Agent to obtain bids and the Bid Solicitation Agent fails to make such determination, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, determination. then, in either case, the Trading Price per $1,000 principal amount of Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company shall so notify in writing the Holders, the Trustee and the Conversion Agent (if other than the Trustee)) in writing. If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate for such date, the Company shall so notify in writing the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee).
(i) If, prior to the close of business on the Business Day immediately preceding August 15, 2029, the Company elects to:
(A) issue to all or substantially all holders of the Common Stock any rights, options or warrants (other than in connection with a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock) entitling them, for a period of not more than 45 calendar days after the announcement date of such issuance, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance; or
(B) distribute to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase securities of the Company (other than pursuant to a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock), which distribution has a per share value, as reasonably determined by the Board of Directors, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution, then, in either case, the Company shall notify in writing all Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) at least 30 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan, no later than the Business Day after the Company becomes aware that such separation has occurred or will occur); provided, however, that if the Company elects Physical Settlement (to the extent that the Company has not elected another Settlement Method to apply, including pursuant to Section 14.02) in the applicable notice in respect of any conversions that occurs from, and including, the date the Company provides such notice to, and including, the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or issuance (or, if earlier, the date the Company announces that such issuance or distribution will not take place) (the “Distribution Trigger Irrevocable Physical Settlement Period”), the Company shall be permitted to provide no less than 10 Scheduled Trading Days’ notice prior to the Ex-Dividend Date for the applicable issuance or distribution, in which case the Company shall be required to settle all conversions of Notes with a Conversion Date occurring during the Distribution Trigger Irrevocable Physical Settlement Period by Physical Settlement, and the Company shall describe the same in such notice. Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at any time until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take place, in each case, even if the Notes are not otherwise convertible at such time. Notwithstanding the foregoing, Holders may not convert their Notes under this Section 14.01(b)(ii) if they participate (other than in the case of a share split or share combination) at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described under this Section 14.01(b)(ii)(A) or (B) without having to convert their Notes as if they held a number of shares of Common Stock equal to the then-effective Conversion Rate multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. Neither the Trustee not the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether an issuance or distribution described in this clause (ii) has occurred.
(ii) If a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section 15.02, or if the Company is a party to a Share Exchange Event (other than a Share Exchange Event that is solely for the purpose of changing the Company’s jurisdiction of organization that does not constitute a Fundamental Change or Make-Whole Fundamental Change) that occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, in each case, pursuant to which the Common Stock would be converted into cash, securities or other assets, all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the effective date of the transaction until the earlier of (x) 35 Trading Days after the effective date of such transaction or, if such transaction also constitutes a Fundamental Change, until the close of business on the Business Day immediately preceding the related Fundamental Change Repurchase Date and (y) the second Scheduled Trading Day immediately preceding the Maturity Date. The Company shall notify in writing Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the effective date of such transaction. Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether a Fundamental Change or a Make-Whole Fundamental Change has occurred.
(iii) Prior to the close of business on the Business Day immediately preceding August 15, 2029, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar quarter commencing after the calendar quarter ending on March 31, 2025 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day. The Company shall determine at the beginning of each calendar quarter commencing after March 31, 2025 whether the Notes may be surrendered for conversion in accordance with this clause (iv) and shall provide written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing, and thereafter neither the Company nor the Bid Solicitation Agent (if other than the Company) shall be required to solicit bids (or determine the Trading Price of the Notes become convertible in accordance with this clause (iv). Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether the condition as set forth in this clause (ivIndenture) has been met.
(iv) If the Company calls any or all of the Notes for redemption pursuant to Article 16 prior to the close of business on the Business Day immediately preceding August 15, 2029, then again until a new Holder may surrender all or any part of such of its Notes as called for redemption for conversion at any time prior to the close of business on the second Scheduled Trading Day prior to the Redemption Date, even if the Notes are not otherwise convertible at such time. After that time, the right to convert such Notes request is made pursuant to this Section 14.01(b)(v) shall expire, unless the Company defaults in the payment of the Redemption Price, in which case a Holder of Notes may convert its Notes until the Redemption Price has been paid or duly provided for14.01(b)(i).
Appears in 1 contract
Sources: Indenture (Coupa Software Inc)
Conversion Privilege. (a) Subject to and upon compliance with the provisions of this Article 14, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the Business Day immediately preceding August July 15, 2029 2032 under the circumstances and during the periods set forth in Section 14.01(b), and (ii) regardless of the conditions described in Section 14.01(b), on or after August July 15, 2029 2032 and prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 62.3539 13.8750 shares of Common Stock (subject to adjustment as provided in this Article 14, the “Conversion Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.02, the “Conversion Obligation”). As provided for in Section 14.09, the Trustee shall have no obligation to make any determination as to whether any of the conditions described in Section 14.01(b) have been satisfied that makes the Notes eligible for conversion or no longer eligible therefor unless and until the Company delivers the related notices referred to in Section 14.01(b).
(a) (i) Prior to the close of business on the Business Day immediately preceding August July 15, 20292032, a Holder may surrender all or any portion of its Notes for conversion at any time during the five Business Day period immediately after any five ten consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined by the Bid Solicitation Agent following a request by a Holder or Holders of Notes in accordance with this subsection (b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on each such Trading Day and the Conversion Rate on each such Trading Day. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this subsection (b)(i) and the definition of Trading Price set forth in this Indenture. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes unless the Company has requested such determination, and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes) unless a Holder or Holders of at least $1,000,000 5,000,000 aggregate principal amount of Notes requests in writing that the Company make such a determination and provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the Conversion Rate on such Trading Day, at which time the Company shall instruct three independent nationally recognized securities dealers to deliver bids and instruct the Bid Solicitation Agent (if other than the Company) to determine, or if the Company is acting as Bid Solicitation Agent, the Company shall determine, the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not not, when the Company is required to, instruct the Bid Solicitation Agent to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentence, or if the Company instructs gives such instruction to the Bid Solicitation Agent to obtain bids and the Bid Solicitation Agent fails to make such determination, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, then, in either case, the Trading Price per $1,000 principal amount of Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company shall so notify in writing the Holders, the Trustee and the Conversion Agent (if other than the Trustee)) in writing. Any such determination shall be conclusive absent manifest error. If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate for such date, the Company shall so notify in writing the Holders of the NotesHolders, the Trustee and the Conversion Agent (if other than the Trustee) in writing and thereafter neither the Company nor the Bid Solicitation Agent (if other than the Company) shall be required to solicit bids (or determine the Trading Price of the Notes as set forth in this Indenture) again unless a new Holder request is made as provided in this subsection (b)(i).
(iii) If, prior to the close of business on the Business Day immediately preceding August July 15, 20292032, the Company elects to:
(A) issue distribute to all or substantially all holders of the Common Stock any rights, options or warrants (other than in connection with a stockholder rights plan so long as prior to the separation of such rights have not separated from the shares of the Common Stock) entitling them, for a period of not more than 45 60 calendar days after the announcement date of such issuancedistribution, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuancedistribution; or
(B) distribute to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase securities of the Company (other than pursuant to in connection with a stockholder rights plan so long as prior to separation of such rights have not separated from the shares of the Common Stock), which distribution has a per share value, as reasonably determined by the Board of DirectorsCompany in good faith, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution, then, in either case, the Company shall notify in writing all Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) in writing at least 30 28 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan, no later than the Business Day as soon as reasonably practicable after the Company becomes aware that such separation or triggering event has occurred or will occur); provided, however, that if the Company elects is then otherwise permitted to settle conversions of Notes by Physical Settlement (to and, for the extent that the Company avoidance of doubt, has not irrevocably elected another Settlement Method to applyfor conversions of Notes), including pursuant to Section 14.02) in the applicable notice in respect of any conversions that occurs from, and including, the date then the Company provides may instead elect to provide such notice to, and including, the close of business on the Business Day immediately preceding the at least five Scheduled Trading Days prior to such Ex-Dividend Date for such distribution or issuance (or, if earlier, the date the Company announces that such issuance or distribution will not take place) (the “Distribution Trigger Irrevocable Physical Settlement Period”), the Company shall be permitted to provide no less than 10 Scheduled Trading Days’ notice prior to the Ex-Dividend Date for the applicable issuance or distributionDate, in which case the Company shall be required to settle all conversions of Notes with a Conversion Date occurring during the Distribution Trigger Irrevocable Physical Settlement Period period on or after the date the Company provides such notice and before such Ex-Dividend Date (or, if earlier, the date the Company announces that such issuance or distribution will not take place) by Physical Settlement, and the Company shall describe the same in such notice. Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at any time until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take placeplace (or, if later, in the case of a separation of rights issued pursuant to a stockholder rights plan, until the 20th Trading Day following the date of such notice), in each case, even if the Notes are not otherwise convertible at such time. Notwithstanding the foregoing, Holders ; provided that a Holder may not convert their its Notes under pursuant to this Section 14.01(b)(iisubsection (b)(ii) if they participate (other than in the case of a share split or share combination) it participates, at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described under this Section 14.01(b)(ii)(Ain clause (A) or (B) of this subsection (b)(ii) without having to convert their its Notes as if they it held a number of shares of Common Stock equal to the then-effective Conversion Rate multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. Neither the Trustee not the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether an issuance or distribution described in this clause (ii) has occurred.
(iiiii) If (A) a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close of business on the Business Day immediately preceding August July 15, 20292032, regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section 15.02, or (B) if the Company is a party to a Share Exchange Event (other than a Share Exchange Event that is solely for the purpose of changing the Company’s jurisdiction of organization that (x) does not constitute a Fundamental Change or a Make-Whole Fundamental ChangeChange and (y) results in a reclassification, conversion or exchange of outstanding shares of Common Stock solely into shares of common stock of the surviving entity and such common stock becomes Reference Property for the Notes) that occurs prior to the close of business on the Business Day immediately preceding August July 15, 20292032, in (each casesuch Fundamental Change, pursuant to which the Common Stock would be converted into cashMake-Whole Fundamental Change or Share Exchange Event, securities or other assetsa “Corporate Event”), all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the effective date of the transaction such Corporate Event until the earlier of (x) 35 Trading Days after the effective date of the Corporate Event (or, if the Company gives notice after the effective date of such transaction Corporate Event, until 35 Trading Days after the date the Company gives notice of such Corporate Event) or, if such transaction Corporate Event also constitutes a Fundamental Change (other than an Exempted Fundamental Change), until the close of business on the Business Day immediately preceding the related Fundamental Change Repurchase Date and (y) the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date. The Company shall notify in writing Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than in writing as promptly as practicable following the effective date of such transaction. Neither Corporate Event, but in no event later than one Business Day after the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination effective date of whether a Fundamental Change or a Make-Whole Fundamental Change has occurredsuch Corporate Event.
(iiiiv) Prior to the close of business on the Business Day immediately preceding August July 15, 20292032, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar quarter commencing after the calendar quarter ending on March December 31, 2025 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day. The Company shall determine at the beginning of each calendar quarter commencing after March 31, 2025 whether the Notes may be surrendered for conversion in accordance with this clause (iv) and shall provide written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) if the Notes become convertible in accordance with this clause (iv). Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether the condition set forth in this clause (iv) has been met.
(ivv) If the Company calls any or all of the Notes for redemption Optional Redemption pursuant to Article 16 prior to the close of business on the Business Day immediately preceding August 15, 202916, then a Holder may surrender all or any part of such portion of its Called Notes as called for redemption for conversion at any time prior during the relevant Redemption Period, even if the Called Notes are not otherwise convertible at such time. If the Company makes an All Notes Election with respect to a Partial Redemption pursuant to Section 16.02(d), Holders of all outstanding Notes may convert their Notes pursuant to this Section 14.01(b)(v) at any time during the close relevant Redemption Period, irrespective of business on the second Scheduled Trading Day prior to the Redemption Date, whether such Notes are Called Notes and even if the Notes are not otherwise convertible at such time. After that timeFollowing the relevant Redemption Period, the right to convert such Notes on account of the Company’s delivery of a Notice of Redemption pursuant to the two immediately preceding sentences shall expire. In the event of a Partial Redemption where the Company does not make an All Notes Election with respect to such Partial Redemption pursuant to Section 16.02(d), if the Holder of any Note (or any owner of a beneficial interest in any Global Note) is reasonably not able to determine, prior to the close of business on the 24th Scheduled Trading Day immediately preceding the relevant Redemption Date (or if, as permitted by Section 16.02(a), the Company delivers a Notice of Redemption not less than 15 calendar days nor more than 45 Scheduled Trading Days prior to the related Redemption Date, then prior to close of business on the 14th calendar day immediately before the relevant Redemption Date), whether such Note or beneficial interest, as applicable, is to be redeemed pursuant to such Partial Redemption (and, as a result thereof, convertible pursuant to this Section 14.01(b)(v)), then such Holder or owner, as applicable, will be entitled to convert such Note or beneficial interest, as applicable, at any time during the relevant Redemption Period, and each such conversion will be deemed to be of a Note called for Optional Redemption, and such Note or beneficial interest will be deemed called for Optional Redemption solely for the purposes of such conversion (“Deemed Redemption”). If a Holder elects to convert its Notes pursuant to this Section 14.01(b)(v) during the related Redemption Period, the Company will, under certain circumstances, increase the Conversion Rate for such Notes that are so converted in connection with such Notice of Redemption pursuant to Section 14.03. Accordingly, in the case of a Partial Redemption where the Company does not make an All Notes Election with respect to such Partial Redemption pursuant to Section 16.02(d), Holders of the Notes that are not Called Notes shall not be entitled to convert such Notes pursuant to this Section 14.01(b)(v) and shall expire, unless the Company defaults not be entitled to an increase in the payment Conversion Rate for conversions of such Notes during the related Redemption PricePeriod pursuant to Section 14.03, in which case a Holder even if such Notes are otherwise convertible pursuant to any other provision of Notes may convert its Notes until the Redemption Price has been paid or duly provided forthis Section 14.01(b).
Appears in 1 contract
Sources: Indenture (AST SpaceMobile, Inc.)
Conversion Privilege. (a) Subject to and upon compliance with the provisions of this Article 14, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the Business Day immediately preceding August 15September 1, 2029 under the circumstances and during the periods set forth in Section 14.01(b), and (ii) regardless of the conditions described in Section 14.01(b), on or after August 15September 1, 2029 and prior to the close of business on the second Scheduled Trading Business Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 62.3539 26.3125 shares of Class A Common Stock (subject to adjustment as provided in this Article 14, the “Conversion Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.02, the “Conversion Obligation”).. 52
(ab) (i) Prior to the close of business on the Business Day immediately preceding August 15September 1, 2029, a Holder may surrender all or any portion of its Notes for conversion at any time during the five Business Day period immediately after any five consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this subsection (b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Class A Common Stock on each such Trading Day and the Conversion Rate on each such Trading Day. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this subsection (b)(i) and the definition of Trading Price set forth in this Indenture. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes unless the Company has requested such determination, and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes) unless a Holder of at least $1,000,000 aggregate principal amount of Notes requests in writing that the Company make such a determination and provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Class A Common Stock on such Trading Day and the Conversion Rate on such Trading Day, at which time the Company shall instruct three nationally recognized securities dealers to deliver bids and instruct the Bid Solicitation Agent (if other than the Company) to determine, or if the Company is acting as Bid Solicitation Agent, the Company shall determine, the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Class A Common Stock and the Conversion Rate. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not instruct the Bid Solicitation Agent to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentence, or if the Company instructs the Bid Solicitation Agent to obtain bids and the Bid Solicitation Agent fails to make such determination, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, then, in either case, the Trading Price per $1,000 principal amount of Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Class A Common Stock and the Conversion Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company shall so notify in writing the Holders, the Trustee and the Conversion Agent (if other than the Trustee). Any such determination shall be conclusive absent manifest error. If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Class A Common Stock and the Conversion Rate for such date, the Company shall so notify in writing the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee).
(i) If, prior to the close of business on the Business Day immediately preceding August 15, 2029, the Company elects to:
(A) issue to all or substantially all holders of the Common Stock any rights, options or warrants (other than in connection with a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock) entitling them, for a period of not more than 45 calendar days after the announcement date of such issuance, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance; or
(B) distribute to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase securities of the Company (other than pursuant to a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock), which distribution has a per share value, as reasonably determined by the Board of Directors, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution, then, in either case, the Company shall notify in writing all Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) at least 30 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan, no later than the Business Day after the Company becomes aware that such separation has occurred or will occur); provided, however, that if the Company elects Physical Settlement (to the extent that the Company has not elected another Settlement Method to apply, including pursuant to Section 14.02) in the applicable notice in respect of any conversions that occurs from, and including, the date the Company provides such notice to, and including, the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or issuance (or, if earlier, the date the Company announces that such issuance or distribution will not take place) (the “Distribution Trigger Irrevocable Physical Settlement Period”), the Company shall be permitted to provide no less than 10 Scheduled Trading Days’ notice prior to the Ex-Dividend Date for the applicable issuance or distribution, in which case the Company shall be required to settle all conversions of Notes with a Conversion Date occurring during the Distribution Trigger Irrevocable Physical Settlement Period by Physical Settlement, and the Company shall describe the same in such notice. Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at any time until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take place, in each case, even if the Notes are not otherwise convertible at such time. Notwithstanding the foregoing, Holders may not convert their Notes under this Section 14.01(b)(ii) if they participate (other than in the case of a share split or share combination) at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described under this Section 14.01(b)(ii)(A) or (B) without having to convert their Notes as if they held a number of shares of Common Stock equal to the then-effective Conversion Rate multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. Neither the Trustee not the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether an issuance or distribution described in this clause (ii) has occurred.
(ii) If a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section 15.02, or if the Company is a party to a Share Exchange Event (other than a Share Exchange Event that is solely for the purpose of changing the Company’s jurisdiction of organization that does not constitute a Fundamental Change or Make-Whole Fundamental Change) that occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, in each case, pursuant to which the Common Stock would be converted into cash, securities or other assets, all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the effective date of the transaction until the earlier of (x) 35 Trading Days after the effective date of such transaction or, if such transaction also constitutes a Fundamental Change, until the close of business on the Business Day immediately preceding the related Fundamental Change Repurchase Date and (y) the second Scheduled Trading Day immediately preceding the Maturity Date. The Company shall notify in writing Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the effective date of such transaction. Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether a Fundamental Change or a Make-Whole Fundamental Change has occurred.
(iii) Prior to the close of business on the Business Day immediately preceding August 15, 2029, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar quarter commencing after the calendar quarter ending on March 31, 2025 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day. The Company shall determine at the beginning of each calendar quarter commencing after March 31, 2025 whether the Notes may be surrendered for conversion in accordance with this clause (iv) and shall provide written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) if the Notes become convertible in accordance with this clause (iv). Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether the condition set forth in this clause (iv) has been met.
(iv) If the Company calls any or all of the Notes for redemption pursuant to Article 16 prior to the close of business on the Business Day immediately preceding August 15, 2029, then a Holder may surrender all or any part of such of its Notes as called for redemption for conversion at any time prior to the close of business on the second Scheduled Trading Day prior to the Redemption Date, even if the Notes are not otherwise convertible at such time. After that time, the right to convert such Notes pursuant to this Section 14.01(b)(v) shall expire, unless the Company defaults in the payment of the Redemption Price, in which case a Holder of Notes may convert its Notes until the Redemption Price has been paid or duly provided for.
Appears in 1 contract
Sources: Indenture (Evolent Health, Inc.)
Conversion Privilege. (a) Subject to and upon compliance with the provisions of this Article Article 14, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section Section 14.01(b), at any time prior to the close of business on the Business Day immediately preceding August 15February 1, 2029 2031 under the circumstances and during the periods set forth in Section 14.01(b), and (ii) regardless of the conditions described in Section Section 14.01(b), on or after August 15February 1, 2029 2031 and prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 62.3539 11.0360 shares of Common Stock (subject to adjustment as provided in this Article Article 14, the “Conversion Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section Section 14.02, the “Conversion Obligation”).
(a) (i) Prior to the close of business on the Business Day immediately preceding August 15February 1, 20292031, a Holder may surrender all or any portion of its Notes for conversion at any time during the five consecutive Business Day period immediately after any five ten consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this subsection (b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on each such Trading Day and the Conversion Rate on each such Trading Day. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this subsection (b)(i) and the definition of Trading Price set forth in this Indenture. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes unless the Company has requested such determination, and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes) unless a Holder or Holders of at least $1,000,000 aggregate 5,000,000 principal amount of Notes requests in writing that the Company make such a determination and provides aggregate provide(s) the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the Conversion Rate on such Trading Day, at which time the Company shall instruct three nationally recognized securities dealers to deliver bids and instruct the Bid Solicitation Agent (if other than the Company) in writing to determine, or if the Company is acting as Bid Solicitation Agent, the Company shall determine, the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not not, when the Company is required to, instruct the Bid Solicitation Agent to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentence, or if the Company instructs gives such instruction to the Bid Solicitation Agent to obtain bids and the Bid Solicitation Agent fails to make such determination, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, then, in either case, the Trading Price per $1,000 principal amount of Notes on any date shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company shall promptly so notify in writing the Holders, the Trustee and the Conversion Agent (if other than the Trustee)) in writing. Any such determination shall be conclusive absent manifest error. If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate for such date, the Company shall promptly so notify in writing the Holders of the NotesHolders, the Trustee and the Conversion Agent (if other than the Trustee) in writing and thereafter neither the Company nor the Bid Solicitation Agent (if other than the Company) shall be required to solicit bids (or determine the Trading Price of the Notes as set forth in this Indenture) again unless a new Holder request is made as provided in this subsection (b)(i). Neither the Trustee nor the Bid Solicitation Agent (if other than the Company) shall have any liability or responsibility for any Trading Price or related information or the accuracy thereof.
(iii) If, prior to the close of business on the Business Day immediately preceding August 15February 1, 20292031, the Company elects to:
(A) issue distribute to all or substantially all holders of the Common Stock any rights, options or warrants (other than in connection with a stockholder shareholder rights plan so long as prior to the separation of such rights have not separated from the shares of the Common Stock) entitling them, for a period of not more than 45 60 calendar days after the announcement date of such issuancedistribution, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuancedistribution; or
(B) distribute to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase securities of the Company (other than pursuant to in connection with a stockholder shareholder rights plan so long as prior to separation of such rights have not separated from the shares of the Common Stock), which distribution has a per share value, as reasonably determined by the Board of DirectorsCompany in good faith, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution, then, in either case, the Company shall notify in writing all Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) in writing at least 30 31 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder shareholder rights plan, no later than the Business Day as soon as reasonably practicable after the Company becomes aware that such separation or triggering event has occurred or will occur); provided, however, that if the Company elects Physical Settlement (to the extent that the Company has not elected another Settlement Method to apply, including pursuant to Section 14.02) in the applicable notice in respect of any conversions that occurs from, and including, the date the Company provides such notice to, and including, the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or issuance (or, if earlier, the date the Company announces that such issuance or distribution will not take place) (the “Distribution Trigger Irrevocable Physical Settlement Period”), the Company shall be permitted to provide no less than 10 Scheduled Trading Days’ notice prior to the Ex-Dividend Date for the applicable issuance or distribution, in which case the Company shall be required to settle all conversions of Notes with a Conversion Date occurring during the Distribution Trigger Irrevocable Physical Settlement Period by Physical Settlement, and the Company shall describe the same in such notice. Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at any time until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take place, in each case, even if the Notes are not otherwise convertible at such time. Notwithstanding the foregoing, ; provided that Holders may not convert their Notes under pursuant to this Section 14.01(b)(iisubsection (b)(ii) if they participate (other than in the case of a share split or share combination) participate, at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described under this Section 14.01(b)(ii)(Ain clause (A) or (B) of this subsection (b)(ii) without having to convert their Notes as if they held a number of shares of Common Stock equal to the then-effective Conversion Rate Rate, multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. Neither the Trustee not the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether an issuance or distribution described in this clause (ii) has occurred.
(iiiii) If (A) a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close of business on the Business Day immediately preceding August 15February 1, 20292031, regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section Section 15.02, or if (B) the Company is a party to a Share Exchange Event (other than a Share Exchange Event that is solely for the purpose of changing the Company’s jurisdiction of organization that (x) does not constitute a Fundamental Change or a Make-Whole Fundamental ChangeChange and (y) results in a reclassification, conversion or exchange of outstanding shares of Common Stock solely into shares of common stock of the surviving entity and such common stock becomes Reference Property for the Notes) that occurs prior to the close of business on the Business Day immediately preceding August 15February 1, 20292031 (each such Fundamental Change, in each caseMake-Whole Fundamental Change or Share Exchange Event, pursuant to which the Common Stock would be converted into cash, securities or other assetsa “Corporate Event”), all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the effective date of the transaction such Corporate Event until the earlier of (x) 35 Trading Days after the effective date of the Corporate Event (or, if the Company gives notice after the effective date of such transaction Corporate Event, until 35 Trading Days after the date the Company gives notice of such Corporate Event) or, if such transaction Corporate Event also constitutes a Fundamental Change (other than an Exempted Fundamental Change), until the close of business on the Business Day immediately preceding the related Fundamental Change Repurchase Date and (y) the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date. The Company shall notify in writing Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than in writing as promptly as practicable following the effective date of such transaction. Neither Corporate Event, but in no event later than two Business Days after the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination effective date of whether a Fundamental Change or a Make-Whole Fundamental Change has occurredsuch Corporate Event.
(iiiiv) Prior to the close of business on the Business Day immediately preceding August 15February 1, 20292031, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar quarter commencing after the calendar quarter ending on March December 31, 2025 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day. The Company shall determine at the beginning of each calendar quarter commencing after March December 31, 2025 whether the Notes may be surrendered for conversion in accordance with this clause (iv) and shall provide prompt written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) if the Notes become convertible in accordance with this clause (iv). Neither the Trustee nor the Conversion Agent (if other than the Trustee) shall have any duty to determine or verify such determination by the Company’s Company pursuant to this clause (iv) or any similar determination of whether by the Company that the Notes have become convertible in accordance with any condition set forth in this clause (iv) has been metSection 14.01(b).
(ivv) If the Company calls any or all of the Notes for redemption pursuant to Article 16 prior to the close of business on the Business Day immediately preceding August 15, 2029Article 16, then a Holder may surrender all or any part of such portion of its Called Notes as called for redemption for conversion at any time prior to the close of business on the second Scheduled Trading Day prior to immediately preceding the Redemption Date, even if the Called Notes are not otherwise convertible at such time. After that time, the right to convert such Called Notes pursuant to this Section 14.01(b)(v) on account of the Company’s delivery of the relevant Notice of Redemption shall expire, unless the Company defaults in the payment of the Redemption Price, in which case a Holder of Called Notes may convert all or a portion of its Called Notes until the Redemption Price has been paid or duly provided for. If the Company elects to redeem fewer than all of the outstanding Notes for redemption pursuant to Article 16, and the Holder of any Note (or any owner of a beneficial interest in any Global Note) is reasonably not able to determine, prior to the close of business on the 29th Scheduled Trading Day immediately preceding the relevant Redemption Date, whether such Note or beneficial interest, as applicable, is to be redeemed pursuant to such redemption, then such Holder or owner, as applicable, shall be entitled to convert such Note or beneficial interest, as applicable, at any time before the close of business on the second Scheduled Trading Day immediately preceding such Redemption Date, unless the Company defaults in the payment of the Redemption Price, in which case such Holder or owner, as applicable, shall be entitled to convert such Note or beneficial interest, as applicable, until the Redemption Price has been paid or duly provided for, and each such conversion will be deemed to be of a Note called for redemption, and such Note or beneficial interest shall be deemed called for redemption solely for the purposes of such conversion (“Deemed Redemption”). If a Holder elects to convert Called Notes during the related Redemption Period, the Company shall, under certain circumstances, increase the Conversion Rate for such Called Notes pursuant to Section 14.03. Accordingly, if the Company elects to redeem fewer than all of the outstanding Notes pursuant to Article 16, Holders of the Notes that are not Called Notes will not be entitled to convert such Notes pursuant to this Section 14.01(b)(v) and will not be entitled to an increase in the Conversion Rate on account of the Notice of Redemption for conversions of such Notes during the related Redemption Period, even if such Notes are otherwise convertible pursuant to any other provision of this Section 14.01(b).
Appears in 1 contract
Sources: Indenture (CMS Energy Corp)
Conversion Privilege. (a) Subject Holders may not convert the Notes at any time on or prior to the 40th day following the last date of original issuance of the Notes (such date, the “Compliance Period End Date”). After the Compliance Period End Date, subject to and upon compliance with the provisions of this Article 14XIV, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is $1,000 US$200,000 principal amount or an integral multiple thereofof US$200,000) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the Business Day immediately preceding August September 15, 2029 under the circumstances and during the periods set forth in Section 14.01(b), and (ii) regardless of the conditions described in Section 14.01(b), on or after August September 15, 2029 and prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 62.3539 shares of Common Stock 324.0966 ADSs (subject to adjustment as provided in this Article 14XIV, the “Conversion Rate”) per $US$1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.02, the “Conversion Obligation”).
(ab) (i) Prior After the Compliance Period End Date and prior to the close of business on the Business Day immediately preceding August September 15, 2029, a Holder may surrender all or any portion of its Notes for conversion at any time during the five Business Day period immediately after any five ten consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $US$1,000 principal amount of Notes, as determined following a written request by a Holder of Notes in accordance with this subsection (b)(ib)(b), for each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock ADSs on each such Trading Day and the Conversion Rate on each such Trading Day. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this subsection (b)(ib)(b) and the definition of Trading Price set forth in this Indenture. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $US$1,000 principal amount of Notes unless the Company has requested such determinationdetermination in writing, and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $US$1,000 principal amount of Notes) unless a Holder of at least $1,000,000 aggregate principal amount of Notes requests in writing that the Company make such a determination and provides the Company with reasonable evidence that the Trading Price per $US$1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Common Stock ADSs on such Trading Day and the Conversion Rate on such Trading Day, at which time the Company shall instruct three nationally recognized securities dealers to deliver bids and instruct the Bid Solicitation Agent (if other than the Company) in writing to determine, or if the Company is acting as Bid Solicitation Agent, the Company shall determine, the Trading Price per $US$1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $US$1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock ADSs and the Conversion Rate. At such time as the Company directs the Bid Solicitation Agent in writing to solicit bid quotations, the Company will provide the Bid Solicitation Agent with the names and contact details of the three independent nationally recognized securities dealers the Company selects, and the Company will direct those securities dealers to provide bids to the Bid Solicitation Agent. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not not, when the Company is required to, instruct the Bid Solicitation Agent to determine the Trading Price per $US$1,000 principal amount of Notes when obligated as provided in the preceding sentenceNotes, or if the Company instructs the Bid Solicitation Agent in writing to obtain bids and the Bid Solicitation Agent fails to make such determination, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, then, in either case, the Trading Price per $US$1,000 principal amount of Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock ADSs and the Conversion Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company shall so notify in writing the Holders, the Trustee and the Conversion Agent (if other than the Trustee)) in writing. If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $US$1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock ADSs and the Conversion Rate for such date, the Company shall so notify in writing the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee).
(i) If, prior to the close of business on the Business Day immediately preceding August 15, 2029, the Company elects to:
(A) issue to all or substantially all holders of the Common Stock any rights, options or warrants (other than in connection with a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock) entitling them, for a period of not more than 45 calendar days after the announcement date of such issuance, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance; or
(B) distribute to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase securities of the Company (other than pursuant to a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock), which distribution has a per share value, as reasonably determined by the Board of Directors, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution, then, in either case, the Company shall notify in writing all Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) at least 30 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan, no later than the Business Day after the Company becomes aware that such separation has occurred or will occur); provided, however, that if the Company elects Physical Settlement (to the extent that the Company has not elected another Settlement Method to apply, including pursuant to Section 14.02) in the applicable notice in respect of any conversions that occurs from, and including, the date the Company provides such notice to, and including, the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or issuance (or, if earlier, the date the Company announces that such issuance or distribution will not take place) (the “Distribution Trigger Irrevocable Physical Settlement Period”), the Company shall be permitted to provide no less than 10 Scheduled Trading Days’ notice prior to the Ex-Dividend Date for the applicable issuance or distribution, in which case the Company shall be required to settle all conversions of Notes with a Conversion Date occurring during the Distribution Trigger Irrevocable Physical Settlement Period by Physical Settlement, and the Company shall describe the same in such notice. Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at any time until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take place, in each case, even if the Notes are not otherwise convertible at such time. Notwithstanding the foregoing, Holders may not convert their Notes under this Section 14.01(b)(ii) if they participate (other than in the case of a share split or share combination) at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described under this Section 14.01(b)(ii)(A) or (B) without having to convert their Notes as if they held a number of shares of Common Stock equal to the then-effective Conversion Rate multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. Neither the Trustee not the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether an issuance or distribution described in this clause (ii) has occurred.
(ii) If a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section 15.02, or if the Company is a party to a Share Exchange Event (other than a Share Exchange Event that is solely for the purpose of changing the Company’s jurisdiction of organization that does not constitute a Fundamental Change or Make-Whole Fundamental Change) that occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, in each case, pursuant to which the Common Stock would be converted into cash, securities or other assets, all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the effective date of the transaction until the earlier of (x) 35 Trading Days after the effective date of such transaction or, if such transaction also constitutes a Fundamental Change, until the close of business on the Business Day immediately preceding the related Fundamental Change Repurchase Date and (y) the second Scheduled Trading Day immediately preceding the Maturity Date. The Company shall notify in writing Holders, the Trustee and the Conversion Agent (if other than the Trustee) that the Trading Price condition set forth in this Section 14.01(b)(i) is no later than longer met and thereafter neither the effective date of such transaction. Neither the Trustee Company nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether a Fundamental Change or a Make-Whole Fundamental Change has occurred.
(iii) Prior to the close of business on the Business Day immediately preceding August 15, 2029, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar quarter commencing after the calendar quarter ending on March 31, 2025 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day. The Company shall determine at the beginning of each calendar quarter commencing after March 31, 2025 whether the Notes may be surrendered for conversion in accordance with this clause (iv) and shall provide written notice to the Holders, the Trustee and the Conversion Bid Solicitation Agent (if other than the TrusteeCompany) if the Notes become convertible in accordance with this clause (iv)shall be required to solicit bids again until another qualifying request is made as provided above. Neither the Trustee nor any of the Conversion Agent Agents shall have any duty to determine appoint or verify monitor the Company’s determination of whether the condition set forth in this clause (iv) has been metBid Solicitation Agent.
(iv) If the Company calls any or all of the Notes for redemption pursuant to Article 16 prior to the close of business on the Business Day immediately preceding August 15, 2029, then a Holder may surrender all or any part of such of its Notes as called for redemption for conversion at any time prior to the close of business on the second Scheduled Trading Day prior to the Redemption Date, even if the Notes are not otherwise convertible at such time. After that time, the right to convert such Notes pursuant to this Section 14.01(b)(v) shall expire, unless the Company defaults in the payment of the Redemption Price, in which case a Holder of Notes may convert its Notes until the Redemption Price has been paid or duly provided for.
Appears in 1 contract
Sources: Indenture (Baidu, Inc.)
Conversion Privilege. (a) Subject to and upon compliance with the provisions of this Article 1413, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b13.01(b), at any time prior to the close of business on the Business Day immediately preceding August 15June 1, 2029 under the circumstances and during the periods set forth in Section 14.01(b13.01(b), and (ii) regardless of the conditions described in Section 14.01(b13.01(b), on or after August 15June 1, 2029 and prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 62.3539 8.4118 shares of Common Stock (subject to adjustment as provided in this Article 1413, the “Conversion Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.0213.02, the “Conversion Obligation”).
(ab) (i) Prior to the close of business on the Business Day immediately preceding August 15June 1, 2029, a Holder may surrender all or any portion of its Notes for conversion at any time during the five Business Day period immediately after any five ten consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this subsection (b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on each such Trading Day and the Conversion Rate on each such Trading Day. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this subsection (b)(i) and the definition of Trading Price set forth in this Indenture. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes unless the Company has requested such determination, and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes) unless a Holder of at least $1,000,000 aggregate principal amount of Notes requests in writing that the Company make such a determination and provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the Conversion Rate on such Trading Day, at which time the Company shall instruct three nationally recognized securities dealers to deliver bids and instruct the Bid Solicitation Agent (if other than the Company) to determine, or or, if the Company is acting as Bid Solicitation Agent, the Company shall determine, the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not instruct the Bid Solicitation Agent to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentence, or if the Company instructs the Bid Solicitation Agent to obtain bids and the Bid Solicitation Agent fails to make such determination, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, then, in either case, the Trading Price per $1,000 principal amount of Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company shall so notify in writing the Holders, the Trustee and the Conversion Agent (if other than the Trustee). If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate for such date, the Company shall so notify in writing the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee).
(i) If, prior to the close of business on the Business Day immediately preceding August 15, 2029, the Company elects to:
(A) issue to all or substantially all holders of the Common Stock any rights, options or warrants (other than in connection with a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock) entitling them, for a period of not more than 45 calendar days after the announcement date of such issuance, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance; or
(B) distribute to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase securities of the Company (other than pursuant to a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock), which distribution has a per share value, as reasonably determined by the Board of Directors, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution, then, in either case, the Company shall notify in writing all Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) at least 30 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan, no later than the Business Day after the Company becomes aware that such separation has occurred or will occur); provided, however, that if the Company elects Physical Settlement (to the extent that the Company has not elected another Settlement Method to apply, including pursuant to Section 14.02) in the applicable notice in respect of any conversions that occurs from, and including, the date the Company provides such notice to, and including, the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or issuance (or, if earlier, the date the Company announces that such issuance or distribution will not take place) (the “Distribution Trigger Irrevocable Physical Settlement Period”), the Company shall be permitted to provide no less than 10 Scheduled Trading Days’ notice prior to the Ex-Dividend Date for the applicable issuance or distribution, in which case the Company shall be required to settle all conversions of Notes with a Conversion Date occurring during the Distribution Trigger Irrevocable Physical Settlement Period by Physical Settlement, and the Company shall describe the same in such notice. Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at any time until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take place, in each case, even if the Notes are not otherwise convertible at such time. Notwithstanding the foregoing, Holders may not convert their Notes under this Section 14.01(b)(ii) if they participate (other than in the case of a share split or share combination) at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described under this Section 14.01(b)(ii)(A) or (B) without having to convert their Notes as if they held a number of shares of Common Stock equal to the then-effective Conversion Rate multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. Neither the Trustee not the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether an issuance or distribution described in this clause (ii) has occurred.
(ii) If a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section 15.02, or if the Company is a party to a Share Exchange Event (other than a Share Exchange Event that is solely for the purpose of changing the Company’s jurisdiction of organization that does not constitute a Fundamental Change or Make-Whole Fundamental Change) that occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, in each case, pursuant to which the Common Stock would be converted into cash, securities or other assets, all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the effective date of the transaction until the earlier of (x) 35 Trading Days after the effective date of such transaction or, if such transaction also constitutes a Fundamental Change, until the close of business on the Business Day immediately preceding the related Fundamental Change Repurchase Date and (y) the second Scheduled Trading Day immediately preceding the Maturity Date. The Company shall notify in writing Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the effective date of such transaction. Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether a Fundamental Change or a Make-Whole Fundamental Change has occurred.
(iii) Prior to the close of business on the Business Day immediately preceding August 15, 2029, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar quarter commencing after the calendar quarter ending on March 31, 2025 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day. The Company shall determine at the beginning of each calendar quarter commencing after March 31, 2025 whether the Notes may be surrendered for conversion in accordance with this clause (iv) and shall provide written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) if the Notes become convertible in accordance with this clause (iv). Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether the condition set forth in this clause (iv) has been met.
(iv) If the Company calls any or all of the Notes for redemption pursuant to Article 16 prior to the close of business on the Business Day immediately preceding August 15, 2029, then a Holder may surrender all or any part of such of its Notes as called for redemption for conversion at any time prior to the close of business on the second Scheduled Trading Day prior to the Redemption Date, even if the Notes are not otherwise convertible at such time. After that time, the right to convert such Notes pursuant to this Section 14.01(b)(v) shall expire, unless the Company defaults in the payment of the Redemption Price, in which case a Holder of Notes may convert its Notes until the Redemption Price has been paid or duly provided for.
Appears in 1 contract
Sources: Indenture (Wolfspeed, Inc.)
Conversion Privilege. (a) Subject Holders may not convert the Notes at any time on or prior to the 40th day following the last date of original issuance of the Notes (such date, the “Compliance Period End Date”). After the Compliance Period End Date, subject to and upon compliance with the provisions of this Article 14Article XIV, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is $1,000 US$200,000 principal amount or an integral multiple thereofof US$200,000) of such Note (i) subject to satisfaction of the conditions described in Section Section 14.01(b), at any time prior to the close of business on the Business Day immediately preceding August September 15, 2029 under the circumstances and during the periods set forth in Section Section 14.01(b), and (ii) regardless of the conditions described in Section Section 14.01(b), on or after August September 15, 2029 and prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 62.3539 shares of Common Stock 324.0966 ADSs (subject to adjustment as provided in this Article 14Article XIV, the “Conversion Rate”) per $US$1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section Section 14.02, the “Conversion Obligation”).
(ab) (i) Prior After the Compliance Period End Date and prior to the close of business on the Business Day immediately preceding August September 15, 2029, a Holder may surrender all or any portion of its Notes for conversion at any time during the five Business Day period immediately after any five ten consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $US$1,000 principal amount of Notes, as determined following a written request by a Holder of Notes in accordance with this subsection (b)(i(b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock ADSs on each such Trading Day and the Conversion Rate on each such Trading Day. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this subsection (b)(i(b)(i) and the definition of Trading Price set forth in this Indenture. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $US$1,000 principal amount of Notes unless the Company has requested such determinationdetermination in writing, and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $US$1,000 principal amount of Notes) unless a Holder of at least $1,000,000 aggregate principal amount of Notes requests in writing that the Company make such a determination and provides the Company with reasonable evidence that the Trading Price per $US$1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Common Stock ADSs on such Trading Day and the Conversion Rate on such Trading Day, at which time the Company shall instruct three nationally recognized securities dealers to deliver bids and instruct the Bid Solicitation Agent (if other than the Company) in writing to determine, or if the Company is acting as Bid Solicitation Agent, the Company shall determine, the Trading Price per $US$1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $US$1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock ADSs and the Conversion Rate. At such time as the Company directs the Bid Solicitation Agent in writing to solicit bid quotations, the Company will provide the Bid Solicitation Agent with the names and contact details of the three independent nationally recognized securities dealers the Company selects, and the Company will direct those securities dealers to provide bids to the Bid Solicitation Agent. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not not, when the Company is required to, instruct the Bid Solicitation Agent to determine the Trading Price per $US$1,000 principal amount of Notes when obligated as provided in the preceding sentenceNotes, or if the Company instructs the Bid Solicitation Agent in writing to obtain bids and the Bid Solicitation Agent fails to make such determination, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, then, in either case, the Trading Price per $US$1,000 principal amount of Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock ADSs and the Conversion Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company shall so notify in writing the Holders, the Trustee and the Conversion Agent (if other than the Trustee)) in writing. If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $US$1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock ADSs and the Conversion Rate for such date, the Company shall so notify in writing the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee).
(i) If, prior to the close of business on the Business Day immediately preceding August 15, 2029, the Company elects to:
(A) issue to all or substantially all holders of the Common Stock any rights, options or warrants (other than in connection with a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock) entitling them, for a period of not more than 45 calendar days after the announcement date of such issuance, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance; or
(B) distribute to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase securities of the Company (other than pursuant to a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock), which distribution has a per share value, as reasonably determined by the Board of Directors, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution, then, in either case, the Company shall notify in writing all Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) at least 30 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan, no later than the Business Day after the Company becomes aware that such separation has occurred or will occur); provided, however, that if the Company elects Physical Settlement (to the extent that the Company has not elected another Settlement Method to apply, including pursuant to Section 14.02) in the applicable notice in respect of any conversions that occurs from, and including, the date the Company provides such notice to, and including, the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or issuance (or, if earlier, the date the Company announces that such issuance or distribution will not take place) (the “Distribution Trigger Irrevocable Physical Settlement Period”), the Company shall be permitted to provide no less than 10 Scheduled Trading Days’ notice prior to the Ex-Dividend Date for the applicable issuance or distribution, in which case the Company shall be required to settle all conversions of Notes with a Conversion Date occurring during the Distribution Trigger Irrevocable Physical Settlement Period by Physical Settlement, and the Company shall describe the same in such notice. Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at any time until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take place, in each case, even if the Notes are not otherwise convertible at such time. Notwithstanding the foregoing, Holders may not convert their Notes under this Section 14.01(b)(ii) if they participate (other than in the case of a share split or share combination) at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described under this Section 14.01(b)(ii)(A) or (B) without having to convert their Notes as if they held a number of shares of Common Stock equal to the then-effective Conversion Rate multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. Neither the Trustee not the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether an issuance or distribution described in this clause (ii) has occurred.
(ii) If a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section 15.02, or if the Company is a party to a Share Exchange Event (other than a Share Exchange Event that is solely for the purpose of changing the Company’s jurisdiction of organization that does not constitute a Fundamental Change or Make-Whole Fundamental Change) that occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, in each case, pursuant to which the Common Stock would be converted into cash, securities or other assets, all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the effective date of the transaction until the earlier of (x) 35 Trading Days after the effective date of such transaction or, if such transaction also constitutes a Fundamental Change, until the close of business on the Business Day immediately preceding the related Fundamental Change Repurchase Date and (y) the second Scheduled Trading Day immediately preceding the Maturity Date. The Company shall notify in writing Holders, the Trustee and the Conversion Agent (if other than the Trustee) that the Trading Price condition set forth in this Section 14.01(b)(i) is no later than longer met and thereafter neither the effective date of such transaction. Neither the Trustee Company nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether a Fundamental Change or a Make-Whole Fundamental Change has occurred.
(iii) Prior to the close of business on the Business Day immediately preceding August 15, 2029, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar quarter commencing after the calendar quarter ending on March 31, 2025 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day. The Company shall determine at the beginning of each calendar quarter commencing after March 31, 2025 whether the Notes may be surrendered for conversion in accordance with this clause (iv) and shall provide written notice to the Holders, the Trustee and the Conversion Bid Solicitation Agent (if other than the TrusteeCompany) if the Notes become convertible in accordance with this clause (iv)shall be required to solicit bids again until another qualifying request is made as provided above. Neither the Trustee nor any of the Conversion Agent Agents shall have any duty to determine appoint or verify monitor the Company’s determination of whether the condition set forth in this clause (iv) has been metBid Solicitation Agent.
(iv) If the Company calls any or all of the Notes for redemption pursuant to Article 16 prior to the close of business on the Business Day immediately preceding August 15, 2029, then a Holder may surrender all or any part of such of its Notes as called for redemption for conversion at any time prior to the close of business on the second Scheduled Trading Day prior to the Redemption Date, even if the Notes are not otherwise convertible at such time. After that time, the right to convert such Notes pursuant to this Section 14.01(b)(v) shall expire, unless the Company defaults in the payment of the Redemption Price, in which case a Holder of Notes may convert its Notes until the Redemption Price has been paid or duly provided for.
Appears in 1 contract
Sources: Indenture (iQIYI, Inc.)
Conversion Privilege. (a) Subject to and upon compliance with the provisions of this Article 14, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral a multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the Business Day immediately preceding August 15July 1, 2029 2027 under the circumstances and during the periods set forth in Section 14.01(b), and (ii) regardless of the conditions described in Section 14.01(b), on or after August 15July 1, 2029 2027 and prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 62.3539 17.3192 shares of Common Stock (subject to adjustment as provided in this Article 14, the “Conversion Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.02, the “Conversion Obligation”).
(ab) (i) Prior to the close of business on the Business Day immediately preceding August 15July 1, 20292027, a Holder may surrender all or any portion of its Notes for conversion at any time during the five Business Day period immediately after any five consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this subsection (b)(iSection 14.01(b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on each such Trading Day and the Conversion Rate on each such Trading Day. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this subsection (b)(iSection 14.01(b)(i) and the definition of Trading Price set forth in this Indenture. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes unless the Company has requested such determinationdetermination in writing, and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes) unless a Holder of at least $1,000,000 aggregate principal amount of Notes requests in writing that the Company make such a determination and provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the Conversion Rate on such Trading DayRate, at which time the Company shall instruct three nationally recognized securities dealers to deliver bids and instruct the Bid Solicitation Agent (if other than the Company) to determine, or if the Company is acting as Bid Solicitation Agent, the Company shall determine, determine the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion RateRate and the Company shall instruct the three independent nationally recognized securities dealers to deliver bids to the Bid Solicitation Agent (if other than the Company). If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not instruct the Bid Solicitation Agent in writing to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentence, or if the Company so instructs the Bid Solicitation Agent to obtain bids and the Bid Solicitation Agent fails to make such determination, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, then, in either case, the Trading Price per $1,000 principal amount of Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate on each Trading Day of such failure. Any such determination by the Company shall be conclusive absent manifest error. If the Trading Price condition set forth above has been met, the Company shall so notify in writing the Holders, the Trustee and the Conversion Agent (if other than the Trustee)) in writing. If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate for such date, the Company shall so notify in writing the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee).
(i) If, prior to the close of business on the Business Day immediately preceding August 15, 2029, the Company elects to:
(A) issue to all or substantially all holders of the Common Stock any rights, options or warrants (other than in connection with a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock) entitling them, for a period of not more than 45 calendar days after the announcement date of such issuance, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance; or
(B) distribute to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase securities of the Company (other than pursuant to a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock), which distribution has a per share value, as reasonably determined by the Board of Directors, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution, then, in either case, the Company shall notify in writing all Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) at least 30 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan, no later than the Business Day after the Company becomes aware that such separation has occurred or will occur); provided, however, that if the Company elects Physical Settlement (to the extent that the Company has not elected another Settlement Method to apply, including pursuant to Section 14.02) in the applicable notice in respect of any conversions that occurs from, and including, the date the Company provides such notice to, and including, the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or issuance (or, if earlier, the date the Company announces that such issuance or distribution will not take place) (the “Distribution Trigger Irrevocable Physical Settlement Period”), the Company shall be permitted to provide no less than 10 Scheduled Trading Days’ notice prior to the Ex-Dividend Date for the applicable issuance or distribution, in which case the Company shall be required to settle all conversions of Notes with a Conversion Date occurring during the Distribution Trigger Irrevocable Physical Settlement Period by Physical Settlement, and the Company shall describe the same in such notice. Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at any time until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take place, in each case, even if the Notes are not otherwise convertible at such time. Notwithstanding the foregoing, Holders may not convert their Notes under this Section 14.01(b)(ii) if they participate (other than in the case of a share split or share combination) at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described under this Section 14.01(b)(ii)(A) or (B) without having to convert their Notes as if they held a number of shares of Common Stock equal to the then-effective Conversion Rate multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. Neither the Trustee not the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether an issuance or distribution described in this clause (ii) has occurredwriting.
(ii) If a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section 15.02, or if the Company is a party to a Share Exchange Event (other than a Share Exchange Event that is solely for the purpose of changing the Company’s jurisdiction of organization that does not constitute a Fundamental Change or Make-Whole Fundamental Change) that occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, in each case, pursuant to which the Common Stock would be converted into cash, securities or other assets, all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the effective date of the transaction until the earlier of (x) 35 Trading Days after the effective date of such transaction or, if such transaction also constitutes a Fundamental Change, until the close of business on the Business Day immediately preceding the related Fundamental Change Repurchase Date and (y) the second Scheduled Trading Day immediately preceding the Maturity Date. The Company shall notify in writing Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the effective date of such transaction. Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether a Fundamental Change or a Make-Whole Fundamental Change has occurred.
(iii) Prior to the close of business on the Business Day immediately preceding August 15, 2029, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar quarter commencing after the calendar quarter ending on March 31, 2025 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day. The Company shall determine at the beginning of each calendar quarter commencing after March 31, 2025 whether the Notes may be surrendered for conversion in accordance with this clause (iv) and shall provide written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) if the Notes become convertible in accordance with this clause (iv). Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether the condition set forth in this clause (iv) has been met.
(iv) If the Company calls any or all of the Notes for redemption pursuant to Article 16 prior to the close of business on the Business Day immediately preceding August 15, 2029, then a Holder may surrender all or any part of such of its Notes as called for redemption for conversion at any time prior to the close of business on the second Scheduled Trading Day prior to the Redemption Date, even if the Notes are not otherwise convertible at such time. After that time, the right to convert such Notes pursuant to this Section 14.01(b)(v) shall expire, unless the Company defaults in the payment of the Redemption Price, in which case a Holder of Notes may convert its Notes until the Redemption Price has been paid or duly provided for.
Appears in 1 contract
Sources: Indenture (Nutanix, Inc.)
Conversion Privilege. (a) Subject to and upon compliance with the provisions of this Article 14, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the Business Day immediately preceding August 15, 2029 2031 under the circumstances and during the periods set forth in Section 14.01(b), and (ii) regardless of the conditions described in Section 14.01(b), on or after August 15, 2029 2031 and prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 62.3539 52.1832 shares of Common Stock (subject to adjustment as provided in this Article 14, the “Conversion Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.02, the “Conversion Obligation”).
(ab) (i) Prior to the close of business on the Business Day immediately preceding August 15, 20292031, a Holder may surrender all or any portion of its Notes for conversion at any time during the five Business Day period immediately after following any five consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this subsection (b)(i), for on each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on each such Trading Day and the Conversion Rate on each such Trading Day. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this subsection (b)(i) and the definition of Trading Price set forth in this Indenture. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes unless the Company has requested such determination, and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes) unless a Holder of at least $1,000,000 aggregate principal amount of Notes requests in writing that the Company make such a determination and provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the Conversion Rate on such Trading Day, at which time the Company shall instruct three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price to deliver bids and instruct the Bid Solicitation Agent (if other than the Company) to determine, or if the Company is acting as Bid Solicitation Agent, the Company shall determine, the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not instruct the Bid Solicitation Agent to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentence, or if the Company instructs the Bid Solicitation Agent to obtain bids and the Bid Solicitation Agent fails to make such determination, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, then, in either case, the Trading Price per $1,000 principal amount of Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company shall so notify in writing the Holders, the Trustee and the Conversion Agent (if other than the Trustee). If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate for such date, the Company shall so notify in writing the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee).
(i) If, prior to the close of business on the Business Day immediately preceding August 15, 2029, the Company elects to:
(A) issue to all or substantially all holders of the Common Stock any rights, options or warrants (other than in connection with a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock) entitling them, for a period of not more than 45 calendar days after the announcement date of such issuance, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance; or
(B) distribute to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase securities of the Company (other than pursuant to a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock), which distribution has a per share value, as reasonably determined by the Board of Directors, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution, then, in either case, the Company shall notify in writing all Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) at least 30 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan, no later than the Business Day after the Company becomes aware that such separation has occurred or will occur); provided, however, that if the Company elects Physical Settlement (to the extent that the Company has not elected another Settlement Method to apply, including pursuant to Section 14.02) in the applicable notice in respect of any conversions that occurs from, and including, the date the Company provides such notice to, and including, the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or issuance (or, if earlier, the date the Company announces that such issuance or distribution will not take place) (the “Distribution Trigger Irrevocable Physical Settlement Period”), the Company shall be permitted to provide no less than 10 Scheduled Trading Days’ notice prior to the Ex-Dividend Date for the applicable issuance or distribution, in which case the Company shall be required to settle all conversions of Notes with a Conversion Date occurring during the Distribution Trigger Irrevocable Physical Settlement Period by Physical Settlement, and the Company shall describe the same in such notice. Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at any time until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take place, in each case, even if the Notes are not otherwise convertible at such time. Notwithstanding the foregoing, Holders may not convert their Notes under this Section 14.01(b)(ii) if they participate (other than in the case of a share split or share combination) at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described under this Section 14.01(b)(ii)(A) or (B) without having to convert their Notes as if they held a number of shares of Common Stock equal to the then-effective Conversion Rate multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. Neither the Trustee not the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether an issuance or distribution described in this clause (ii) has occurred.
(ii) If a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section 15.02, or if the Company is a party to a Share Exchange Event (other than a Share Exchange Event that is solely for the purpose of changing the Company’s jurisdiction of organization that does not constitute a Fundamental Change or Make-Whole Fundamental Change) that occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, in each case, pursuant to which the Common Stock would be converted into cash, securities or other assets, all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the effective date of the transaction until the earlier of (x) 35 Trading Days after the effective date of such transaction or, if such transaction also constitutes a Fundamental Change, until the close of business on the Business Day immediately preceding the related Fundamental Change Repurchase Date and (y) the second Scheduled Trading Day immediately preceding the Maturity Date. The Company shall notify in writing Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the effective date of such transaction. Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether a Fundamental Change or a Make-Whole Fundamental Change has occurred.
(iii) Prior to the close of business on the Business Day immediately preceding August 15, 2029, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar quarter commencing after the calendar quarter ending on March 31, 2025 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day. The Company shall determine at the beginning of each calendar quarter commencing after March 31, 2025 whether the Notes may be surrendered for conversion in accordance with this clause (iv) and shall provide written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) if the Notes become convertible in accordance with this clause (iv). Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether the condition set forth in this clause (iv) has been met.
(iv) If the Company calls any or all of the Notes for redemption pursuant to Article 16 prior to the close of business on the Business Day immediately preceding August 15, 2029, then a Holder may surrender all or any part of such of its Notes as called for redemption for conversion at any time prior to the close of business on the second Scheduled Trading Day prior to the Redemption Date, even if the Notes are not otherwise convertible at such time. After that time, the right to convert such Notes pursuant to this Section 14.01(b)(v) shall expire, unless the Company defaults in the payment of the Redemption Price, in which case a Holder of Notes may convert its Notes until the Redemption Price has been paid or duly provided for.
Appears in 1 contract
Sources: Indenture (Cleanspark, Inc.)
Conversion Privilege. (a) Subject to and upon compliance with the provisions of this Article 14, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the Business Day immediately preceding August 15March 1, 2029 2028 under the circumstances and during the periods set forth in Section 14.01(b), and (ii) regardless of the conditions described in Section 14.01(b), on or after August 15March 1, 2029 2028 and prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 62.3539 18.9860 shares of Common Stock (subject to adjustment as provided in this Article 14, the “Conversion Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.02, the “Conversion Obligation”).
(ab) (i) Prior to the close of business on the Business Day immediately preceding August 15March 1, 20292028, a Holder may surrender all or any portion of its Notes for conversion at any time during the five Business Day period immediately after any five consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this subsection (b)(iSection 14.01(b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on each such Trading Day and the Conversion Rate on each such Trading DayDay (the “Trading Price Condition”). The Trading Prices shall be determined solicited by the Bid Solicitation Agent and determined by the Company pursuant to this subsection (b)(iSection 14.01(b)(i) and the definition of Trading Price set forth in this Indenture. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine solicit the Trading Price per $1,000 principal amount of Notes unless the Company has requested such determinationsolicitation in writing, and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to solicit and/or determine the Trading Price per $1,000 principal amount of Notes) unless a Holder of at least $1,000,000 3,000,000 aggregate principal amount of Notes requests in writing that the Company make such a determination and provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the Conversion Rate on such Trading DayRate, at which time the Company shall instruct three nationally recognized securities dealers to deliver bids and instruct the Bid Solicitation Agent (if other than the Company) to determinesolicit, or if the Company is acting as Bid Solicitation Agent, the Company shall determinesolicit, the Trading Price per $1,000 principal amount of Notes such bids beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion RateRate and the Company shall instruct the three independent nationally recognized securities dealers to deliver the bids to the Bid Solicitation Agent. The Company will determine the Trading Price in accordance with the bids solicited by the Bid Solicitation Agent. If the Trading Price Condition has been met on any trading day, the Company will so notify the Holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing on or within one business day of such trading day. Any such determination will be conclusive absent manifest error. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not not, when the Company is required to, instruct the Bid Solicitation Agent in writing to determine obtain the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentencethis Section 14.01(b)(i), or if the Company so instructs the Bid Solicitation Agent to obtain bids and the Bid Solicitation Agent fails to make such determinationsolicitation, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination solicitation when obligated as provided in the preceding sentencethis Section 14.01(b)(i), then, in either case, the Trading Price per $1,000 principal amount of Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate on each Trading Day of such failure. If the Trading Price condition Condition set forth above has been met, the Company shall so notify in writing the Holders, the Trustee and the Conversion Agent (if other than the Trustee)) in writing. If, at any time after the Trading Price condition Condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate for such dateTrading Day, the Company shall so notify in writing the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee).
(i) If, prior to in writing that the close of business on the Business Day immediately preceding August 15, 2029, Trading Price Condition is no longer met and thereafter neither the Company elects to:
(A) issue to all or substantially all holders of nor the Common Stock any rights, options or warrants (other than in connection with a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock) entitling them, for a period of not more than 45 calendar days after the announcement date of such issuance, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance; or
(B) distribute to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase securities of the Company (other than pursuant to a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock), which distribution has a per share value, as reasonably determined by the Board of Directors, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution, then, in either case, the Company shall notify in writing all Holders of the Notes, the Trustee and the Conversion Bid Solicitation Agent (if other than the TrusteeCompany) at least 30 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan, no later than the Business Day after the Company becomes aware that such separation has occurred or will occur); provided, however, that if the Company elects Physical Settlement (to the extent that the Company has not elected another Settlement Method to apply, including pursuant to Section 14.02) in the applicable notice in respect of any conversions that occurs from, and including, the date the Company provides such notice to, and including, the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or issuance (or, if earlier, the date the Company announces that such issuance or distribution will not take place) (the “Distribution Trigger Irrevocable Physical Settlement Period”), the Company shall be permitted to provide no less than 10 Scheduled Trading Days’ notice prior to the Ex-Dividend Date for the applicable issuance or distribution, in which case the Company shall be required to settle all conversions of Notes with a Conversion Date occurring during the Distribution Trigger Irrevocable Physical Settlement Period by Physical Settlement, and the Company shall describe the same in such notice. Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at any time solicit bids again until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take place, in each case, even if the Notes are not otherwise convertible at such time. Notwithstanding the foregoing, Holders may not convert their Notes under this Section 14.01(b)(ii) if they participate (other than in the case of a share split or share combination) at the same time and upon the same terms another qualifying request is made as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described under this Section 14.01(b)(ii)(A) or (B) without having to convert their Notes as if they held a number of shares of Common Stock equal to the then-effective Conversion Rate multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. Neither the Trustee not the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether an issuance or distribution described in this clause (ii) has occurredprovided above.
(ii) If a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section 15.02, or if the Company is a party to a Share Exchange Event (other than a Share Exchange Event that is solely for the purpose of changing the Company’s jurisdiction of organization that does not constitute a Fundamental Change or Make-Whole Fundamental Change) that occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, in each case, pursuant to which the Common Stock would be converted into cash, securities or other assets, all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the effective date of the transaction until the earlier of (x) 35 Trading Days after the effective date of such transaction or, if such transaction also constitutes a Fundamental Change, until the close of business on the Business Day immediately preceding the related Fundamental Change Repurchase Date and (y) the second Scheduled Trading Day immediately preceding the Maturity Date. The Company shall notify in writing Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the effective date of such transaction. Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether a Fundamental Change or a Make-Whole Fundamental Change has occurred.
(iii) Prior to the close of business on the Business Day immediately preceding August 15, 2029, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar quarter commencing after the calendar quarter ending on March 31, 2025 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day. The Company shall determine at the beginning of each calendar quarter commencing after March 31, 2025 whether the Notes may be surrendered for conversion in accordance with this clause (iv) and shall provide written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) if the Notes become convertible in accordance with this clause (iv). Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether the condition set forth in this clause (iv) has been met.
(iv) If the Company calls any or all of the Notes for redemption pursuant to Article 16 prior to the close of business on the Business Day immediately preceding August 15, 2029, then a Holder may surrender all or any part of such of its Notes as called for redemption for conversion at any time prior to the close of business on the second Scheduled Trading Day prior to the Redemption Date, even if the Notes are not otherwise convertible at such time. After that time, the right to convert such Notes pursuant to this Section 14.01(b)(v) shall expire, unless the Company defaults in the payment of the Redemption Price, in which case a Holder of Notes may convert its Notes until the Redemption Price has been paid or duly provided for.
Appears in 1 contract
Sources: Indenture (Cutera Inc)
Conversion Privilege. (a) Subject to and upon compliance with the provisions of this Article 14, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the Business Day immediately preceding August January 15, 2029 2026 under the circumstances and during the periods set forth in Section 14.01(b), and (ii) regardless of the conditions described in Section 14.01(b), on or after August January 15, 2029 2026 and prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 62.3539 6.0369 shares of Common Stock (subject to adjustment as provided in this Article 14, the “Conversion Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.02, the “Conversion Obligation”).
(a) (i) Prior to the close of business on the Business Day immediately preceding August January 15, 20292026, a Holder may surrender all or any portion of its Notes for conversion at any time during the five Business Day period immediately after any five ten consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this subsection (b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on each such Trading Day and the Conversion Rate on each such Trading Day. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this subsection (b)(i) and the definition of Trading Price set forth in this Indenture. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes unless the Company has requested such determination, and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes) unless a Holder or Holders of at least $1,000,000 aggregate 2,000,000 principal amount of Notes requests in writing that the Company make such a determination and provides aggregate provide(s) the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the Conversion Rate on such Trading Day, at which time the Company shall instruct three nationally recognized securities dealers to deliver bids and instruct the Bid Solicitation Agent (if other than the Company) to determine, or if the Company is acting as Bid Solicitation Agent, the Company shall determine, the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not not, when the Company is required to, instruct the Bid Solicitation Agent to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentence, or if the Company instructs gives such instruction to the Bid Solicitation Agent to obtain bids and the Bid Solicitation Agent fails to make such determination, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, then, in either case, the Trading Price per $1,000 principal amount of Notes on any date shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company shall so notify in writing the Holders, the Trustee and the Conversion Agent (if other than the Trustee)) in writing. Any such determination shall be conclusive absent manifest error. If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate for such date, the Company shall so notify in writing the Holders of the NotesHolders, the Trustee and the Conversion Agent (if other than the Trustee) in writing and thereafter neither the Company nor the Bid Solicitation Agent (if other than the Company) shall be required to solicit bids (or determine the Trading Price of the Notes as set forth in this Indenture) again unless a new Holder request is made as provided in this subsection (b)(i).
(iii) If, prior to the close of business on the Business Day immediately preceding August January 15, 20292026, the Company elects to:
(A) issue distribute to all or substantially all holders of the Common Stock any rights, options or warrants (other than in connection with a stockholder rights plan so long as prior to the separation of such rights have not separated from the shares of the Common Stock) entitling them, for a period of not more than 45 60 calendar days after the announcement date of such issuancedistribution, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuancedistribution; or
(B) distribute to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase securities of the Company (other than pursuant to in connection with a stockholder rights plan so long as prior to separation of such rights have not separated from the shares of the Common Stock), which distribution has a per share value, as reasonably determined by the Board of DirectorsCompany in good faith, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution, then, in either case, the Company shall notify in writing all Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) in writing at least 30 65 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan, no later than the Business Day as soon as reasonably practicable after the Company becomes aware that such separation or triggering event has occurred or will occur); provided, however, that if the Company elects Physical Settlement (to the extent that the Company has not elected another Settlement Method to apply, including pursuant to Section 14.02) in the applicable notice in respect of any conversions that occurs from, and including, the date the Company provides such notice to, and including, the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or issuance (or, if earlier, the date the Company announces that such issuance or distribution will not take place) (the “Distribution Trigger Irrevocable Physical Settlement Period”), the Company shall be permitted to provide no less than 10 Scheduled Trading Days’ notice prior to the Ex-Dividend Date for the applicable issuance or distribution, in which case the Company shall be required to settle all conversions of Notes with a Conversion Date occurring during the Distribution Trigger Irrevocable Physical Settlement Period by Physical Settlement, and the Company shall describe the same in such notice. Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at any time until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take place, in each case, even if the Notes are not otherwise convertible at such time. Notwithstanding the foregoing, ; provided that Holders may not convert their Notes under pursuant to this Section 14.01(b)(iisubsection (b)(ii) if they participate (other than in the case of a share split or share combination) participate, at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described under this Section 14.01(b)(ii)(Ain clause (A) or (B) of this subsection (b)(ii) without having to convert their Notes as if they held a number of shares of Common Stock equal to the then-effective Conversion Rate Rate, multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. Neither the Trustee not the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether an issuance or distribution described in this clause (ii) has occurred.
(iiiii) If (A) a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close of business on the Business Day immediately preceding August January 15, 20292026, regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section 15.02, or (B) if the Company is a party to a Share Exchange Event (other than a Share Exchange Event that is solely for the purpose of changing the Company’s jurisdiction of organization that (x) does not constitute a Fundamental Change or a Make-Whole Fundamental ChangeChange and (y) results in a reclassification, conversion or exchange of outstanding shares of Common Stock solely into shares of common stock of the surviving entity and such common stock becomes Reference Property for the Notes) that occurs prior to the close of business on the Business Day immediately preceding August January 15, 20292026, in (each casesuch Fundamental Change, pursuant to which the Common Stock would be converted into cashMake-Whole Fundamental Change or Share Exchange Event, securities or other assetsa “Corporate Event”), all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the effective date of the transaction such Corporate Event until the earlier of (x) 35 Trading Days after the effective date of the Corporate Event (or, if the Company gives notice after the effective date of such transaction Corporate Event, until 35 Trading Days after the date the Company gives notice of such Corporate Event) or, if such transaction Corporate Event also constitutes a Fundamental Change (other than an Exempted Fundamental Change), until the close of business on the Business Day immediately preceding the related Fundamental Change Repurchase Date and (y) the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date. The Company shall notify in writing Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than in writing as promptly as practicable following the effective date of such transaction. Neither Corporate Event, but in no event later than one Business Day after the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination effective date of whether a Fundamental Change or a Make-Whole Fundamental Change has occurredsuch Corporate Event.
(iiiiv) Prior to the close of business on the Business Day immediately preceding August January 15, 20292026, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar quarter commencing after the calendar quarter ending on March 31June 30, 2025 2021 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day. The Company shall determine at the beginning of each calendar quarter commencing after March 31, 2025 whether the Notes may be surrendered for conversion in accordance with this clause (iv) and shall provide written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) if the Notes become convertible in accordance with this clause (iv). Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether the condition set forth in this clause (iv) has been met.
(ivv) If the Company calls any or all of the Notes for redemption pursuant to Article 16 prior to the close of business on the Business Day immediately preceding August 15, 202916, then a Holder may surrender all or any part of such portion of its Called Notes as called for redemption for conversion at any time prior to the close of business on the second Scheduled Trading Day prior to immediately preceding the Redemption Date, even if the Called Notes are not otherwise convertible at such time. After that time, the right to convert such Called Notes pursuant to this Section 14.01(b)(v) on account of the Company’s delivery of a Notice of Redemption shall expire, unless the Company defaults in the payment of the Redemption Price, in which case a Holder of Called Notes may convert all or a portion of its Called Notes until the Redemption Price has been paid or duly provided for. If the Company elects to redeem fewer than all of the outstanding Notes for redemption pursuant to Article 16, and the Holder of any Note (or any owner of a beneficial interest in any Global Note) is reasonably not able to determine, prior to the close of business on the 64th Scheduled Trading Day immediately preceding the relevant Redemption Date, whether such Note or beneficial interest, as applicable, is to be redeemed pursuant to such redemption, then such Holder or owner, as applicable, will be entitled to convert such Note or beneficial interest, as applicable, at any time before the close of business on the Scheduled Trading Day immediately preceding such Redemption Date, unless the Company defaults in the payment of the Redemption Price, in which case such Holder or owner, as applicable, will be entitled to convert such Note or beneficial interest, as applicable, until the Redemption Price has been paid or duly provided for, and each such conversion will be deemed to be of a Note called for redemption, and such Note or beneficial interest will be deemed called for redemption solely for the purposes of such conversion (“Deemed Redemption”). If a Holder elects to convert Called Notes during the related Redemption Period, the Company will, under certain circumstances, increase the Conversion Rate for such Called Notes pursuant to Section 14.03. Accordingly, if the Company elects to redeem fewer than all of the outstanding Notes pursuant to Article 16, Holders of the Notes that are not Called Notes will not be entitled to convert such Notes pursuant to this Section 14.01(b)(v) and will not be entitled to an increase in the Conversion Rate on account of the Notice of Redemption for conversions of such Notes during the related Redemption Period, even if such Notes are otherwise convertible pursuant to any other provision of this Section 14.01(b).
Appears in 1 contract
Sources: Indenture (Lci Industries)
Conversion Privilege. (a) Subject to and upon compliance with the provisions of this Article 14, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral a multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the Business Day immediately preceding August September 15, 2029 2027 under the circumstances and during the periods set forth in Section 14.01(b), and (ii) regardless of the conditions described in Section 14.01(b), on or after August September 15, 2029 2027 and prior to the close of business on the second Scheduled Trading Business Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 62.3539 15.1172 shares of Common Stock (subject to adjustment as provided in this Article 14, the “Conversion Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.02, the “Conversion Obligation”).
(ab) (i) Prior to the close of business on the Business Day immediately preceding August September 15, 20292027, a Holder may surrender all or any portion of its Notes for conversion at any time during the five Business Day period immediately after any five consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a written request by a Holder of Notes in accordance with this subsection (b)(iSection 14.01(b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on each such Trading Day and the Conversion Rate on each such Trading Day. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this subsection (b)(iSection 14.01(b)(i) and the definition of Trading Price set forth in this Indenture. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes unless the Company has requested such determinationdetermination in writing, and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes) unless a Holder of at least $1,000,000 2,000,000 aggregate principal amount of Notes requests in writing that the Company make such a determination and provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the Conversion Rate on such Trading DayRate, at which time the Company shall instruct three nationally recognized securities dealers to deliver bids and instruct the Bid Solicitation Agent in writing (if other than the Company) to determine, or if the Company is acting as Bid Solicitation Agent, the Company shall determine, determine the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate. At such time as the Company directs the Bid Solicitation Agent in writing to solicit bid quotations, the Company shall provide the Bid Solicitation Agent with the names and contact details of the three independent nationally recognized securities dealers selected by the Company, and the Company shall direct those security dealers to provide bids to the Bid Solicitation Agent. Any such determination will be conclusive absent manifest error. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not not, when the Company is required to, instruct the Bid Solicitation Agent to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentenceobtain bids, or if the Company so instructs the Bid Solicitation Agent to obtain bids and the Bid Solicitation Agent fails to make such determination, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, determination. then, in either case, the Trading Price per $1,000 principal amount of Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company shall so notify in writing the Holders, the Trustee and the Conversion Agent (if other than the Trustee)) in writing. If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate for such date, the Company shall so notify in writing the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee).
(i) If, prior to the close of business on the Business Day immediately preceding August 15, 2029, the Company elects to:
(A) issue to all or substantially all holders of the Common Stock any rights, options or warrants (other than in connection with a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock) entitling them, for a period of not more than 45 calendar days after the announcement date of such issuance, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance; or
(B) distribute to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase securities of the Company (other than pursuant to a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock), which distribution has a per share value, as reasonably determined by the Board of Directors, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution, then, in either case, the Company shall notify in writing all Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) at least 30 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan, no later than the Business Day after the Company becomes aware that such separation has occurred or will occur); provided, however, that if the Company elects Physical Settlement (to the extent that the Company has not elected another Settlement Method to apply, including pursuant to Section 14.02) in the applicable notice in respect of any conversions that occurs from, and including, the date the Company provides such notice to, and including, the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or issuance (or, if earlier, the date the Company announces that such issuance or distribution will not take place) (the “Distribution Trigger Irrevocable Physical Settlement Period”), the Company shall be permitted to provide no less than 10 Scheduled Trading Days’ notice prior to the Ex-Dividend Date for the applicable issuance or distribution, in which case the Company shall be required to settle all conversions of Notes with a Conversion Date occurring during the Distribution Trigger Irrevocable Physical Settlement Period by Physical Settlement, and the Company shall describe the same in such notice. Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at any time until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take place, in each case, even if the Notes are not otherwise convertible at such time. Notwithstanding the foregoing, Holders may not convert their Notes under this Section 14.01(b)(ii) if they participate (other than in the case of a share split or share combination) at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described under this Section 14.01(b)(ii)(A) or (B) without having to convert their Notes as if they held a number of shares of Common Stock equal to the then-effective Conversion Rate multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. Neither the Trustee not the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether an issuance or distribution described in this clause (ii) has occurred.
(ii) If a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section 15.02, or if the Company is a party to a Share Exchange Event (other than a Share Exchange Event that is solely for the purpose of changing the Company’s jurisdiction of organization that does not constitute a Fundamental Change or Make-Whole Fundamental Change) that occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, in each case, pursuant to which the Common Stock would be converted into cash, securities or other assets, all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the effective date of the transaction until the earlier of (x) 35 Trading Days after the effective date of such transaction or, if such transaction also constitutes a Fundamental Change, until the close of business on the Business Day immediately preceding the related Fundamental Change Repurchase Date and (y) the second Scheduled Trading Day immediately preceding the Maturity Date. The Company shall notify in writing Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the effective date of such transaction. Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether a Fundamental Change or a Make-Whole Fundamental Change has occurred.
(iii) Prior to the close of business on the Business Day immediately preceding August 15, 2029, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar quarter commencing after the calendar quarter ending on March 31, 2025 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day. The Company shall determine at the beginning of each calendar quarter commencing after March 31, 2025 whether the Notes may be surrendered for conversion in accordance with this clause (iv) and shall provide written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing, and thereafter neither the Company nor the Bid Solicitation Agent (if other than the Company) shall be required to solicit bids (or determine the Trading Price of the Notes become convertible in accordance with this clause (iv). Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether the condition as set forth in this clause (ivIndenture) has been met.
(iv) If the Company calls any or all of the Notes for redemption pursuant to Article 16 prior to the close of business on the Business Day immediately preceding August 15, 2029, then again until a new Holder may surrender all or any part of such of its Notes as called for redemption for conversion at any time prior to the close of business on the second Scheduled Trading Day prior to the Redemption Date, even if the Notes are not otherwise convertible at such time. After that time, the right to convert such Notes request is made pursuant to this Section 14.01(b)(v) shall expire, unless the Company defaults in the payment of the Redemption Price, in which case a Holder of Notes may convert its Notes until the Redemption Price has been paid or duly provided for14.01(b)(i).
Appears in 1 contract
Sources: Indenture (Neogenomics Inc)
Conversion Privilege. (a) Subject to and upon compliance with the provisions of this Article 1413, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b13.01(b), at any time prior to the close of business on the Business Day immediately preceding August 1516, 2029 2027 under the circumstances and during the periods set forth in Section 14.01(b13.01(b), and (ii) regardless of the conditions described in Section 14.01(b13.01(b), on or after August 1516, 2029 2027 and prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 62.3539 7.8602 shares of Common Stock (subject to adjustment as provided in this Article 1413, the “Conversion Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.0213.02, the “Conversion Obligation”).
(ab) (i) Prior to the close of business on the Business Day immediately preceding August 1516, 20292027, a Holder may surrender all or any portion of its Notes for conversion at any time during the five Business Day period immediately after any five ten consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this subsection (b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on each such Trading Day and the Conversion Rate on each such Trading Day. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this subsection (b)(i) and the definition of Trading Price set forth in this Indenture. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes unless the Company has requested such determination, and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes) unless a Holder of at least $1,000,000 aggregate principal amount of Notes requests in writing that the Company make such a determination and provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the Conversion Rate on such Trading Day, at which time the Company shall instruct three nationally recognized securities dealers to deliver bids and instruct the Bid Solicitation Agent (if other than the Company) to determine, or or, if the Company is acting as Bid Solicitation Agent, the Company shall determine, the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not instruct the Bid Solicitation Agent to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentence, or if the Company instructs the Bid Solicitation Agent to obtain bids and the Bid Solicitation Agent fails to make such determination, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, then, in either case, the Trading Price per $1,000 principal amount of Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company shall so notify in writing the Holders, the Trustee and the Conversion Agent (if other than the Trustee). If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate for such date, the Company shall so notify in writing the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee).
(i) If, prior to the close of business on the Business Day immediately preceding August 15, 2029, the Company elects to:
(A) issue to all or substantially all holders of the Common Stock any rights, options or warrants (other than in connection with a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock) entitling them, for a period of not more than 45 calendar days after the announcement date of such issuance, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance; or
(B) distribute to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase securities of the Company (other than pursuant to a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock), which distribution has a per share value, as reasonably determined by the Board of Directors, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution, then, in either case, the Company shall notify in writing all Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) at least 30 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan, no later than the Business Day after the Company becomes aware that such separation has occurred or will occur); provided, however, that if the Company elects Physical Settlement (to the extent that the Company has not elected another Settlement Method to apply, including pursuant to Section 14.02) in the applicable notice in respect of any conversions that occurs from, and including, the date the Company provides such notice to, and including, the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or issuance (or, if earlier, the date the Company announces that such issuance or distribution will not take place) (the “Distribution Trigger Irrevocable Physical Settlement Period”), the Company shall be permitted to provide no less than 10 Scheduled Trading Days’ notice prior to the Ex-Dividend Date for the applicable issuance or distribution, in which case the Company shall be required to settle all conversions of Notes with a Conversion Date occurring during the Distribution Trigger Irrevocable Physical Settlement Period by Physical Settlement, and the Company shall describe the same in such notice. Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at any time until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take place, in each case, even if the Notes are not otherwise convertible at such time. Notwithstanding the foregoing, Holders may not convert their Notes under this Section 14.01(b)(ii) if they participate (other than in the case of a share split or share combination) at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described under this Section 14.01(b)(ii)(A) or (B) without having to convert their Notes as if they held a number of shares of Common Stock equal to the then-effective Conversion Rate multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. Neither the Trustee not the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether an issuance or distribution described in this clause (ii) has occurred.
(ii) If a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section 15.02, or if the Company is a party to a Share Exchange Event (other than a Share Exchange Event that is solely for the purpose of changing the Company’s jurisdiction of organization that does not constitute a Fundamental Change or Make-Whole Fundamental Change) that occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, in each case, pursuant to which the Common Stock would be converted into cash, securities or other assets, all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the effective date of the transaction until the earlier of (x) 35 Trading Days after the effective date of such transaction or, if such transaction also constitutes a Fundamental Change, until the close of business on the Business Day immediately preceding the related Fundamental Change Repurchase Date and (y) the second Scheduled Trading Day immediately preceding the Maturity Date. The Company shall notify in writing Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the effective date of such transaction. Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether a Fundamental Change or a Make-Whole Fundamental Change has occurred.
(iii) Prior to the close of business on the Business Day immediately preceding August 15, 2029, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar quarter commencing after the calendar quarter ending on March 31, 2025 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day. The Company shall determine at the beginning of each calendar quarter commencing after March 31, 2025 whether the Notes may be surrendered for conversion in accordance with this clause (iv) and shall provide written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) if the Notes become convertible in accordance with this clause (iv). Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether the condition set forth in this clause (iv) has been met.
(iv) If the Company calls any or all of the Notes for redemption pursuant to Article 16 prior to the close of business on the Business Day immediately preceding August 15, 2029, then a Holder may surrender all or any part of such of its Notes as called for redemption for conversion at any time prior to the close of business on the second Scheduled Trading Day prior to the Redemption Date, even if the Notes are not otherwise convertible at such time. After that time, the right to convert such Notes pursuant to this Section 14.01(b)(v) shall expire, unless the Company defaults in the payment of the Redemption Price, in which case a Holder of Notes may convert its Notes until the Redemption Price has been paid or duly provided for.
Appears in 1 contract
Sources: Indenture (Wolfspeed, Inc.)
Conversion Privilege. (a) Subject to and upon compliance with the provisions of this Article 14, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the Business Day immediately preceding August 15February 1, 2029 2026 under the circumstances and during the periods set forth in Section 14.01(b), and (ii) regardless of the conditions described in Section 14.01(b), on or after August 15February 1, 2029 2026 and prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 62.3539 4.1940 shares of Common Stock (subject to adjustment as provided in this Article 14, the “Conversion Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.02, the “Conversion Obligation”).
(ab) (i) Prior to the close of business on the Business Day immediately preceding August 15February 1, 20292026, a Holder may surrender all or any portion of its Notes for conversion at any time during the five Business Day period immediately after any five consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this subsection (b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on each such Trading Day and the Conversion Rate on each such Trading Day. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this subsection (b)(i) and the definition of Trading Price set forth in this Indenture. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes unless the Company has requested such determination, and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes) unless a Holder of at least $1,000,000 aggregate principal amount of Notes requests in writing that the Company make such a determination and provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the Conversion Rate on such Trading Day, at which time the Company shall instruct three nationally recognized securities dealers to deliver bids and instruct the Bid Solicitation Agent (if other than the Company) to determine, or if the Company is acting as Bid Solicitation Agent, the Company shall determine, the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not not, when the Company is required to, instruct the Bid Solicitation Agent to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentence, or if the Company instructs the Bid Solicitation Agent to obtain bids and the Bid Solicitation Agent fails to make such determination, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, then, in either case, the Trading Price per $1,000 principal amount of Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company shall so notify in writing the Holders, the Trustee and the Conversion Agent (if other than the Trustee). If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate for such date, the Company shall so notify in writing the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee).
(i) If, prior to the close of business on the Business Day immediately preceding August 15, 2029, the Company elects to:
(A) issue to all or substantially all holders of the Common Stock any rights, options or warrants (other than in connection with a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock) entitling them, for a period of not more than 45 calendar days after the announcement date of such issuance, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance; or
(B) distribute to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase securities of the Company (other than pursuant to a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock), which distribution has a per share value, as reasonably determined by the Board of Directors, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution, then, in either case, the Company shall notify in writing all Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) at least 30 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan, no later than the Business Day after the Company becomes aware that such separation has occurred or will occur); provided, however, that if the Company elects Physical Settlement (to the extent that the Company has not elected another Settlement Method to apply, including pursuant to Section 14.02) in the applicable notice in respect of any conversions that occurs from, and including, the date the Company provides such notice to, and including, the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or issuance (or, if earlier, the date the Company announces that such issuance or distribution will not take place) (the “Distribution Trigger Irrevocable Physical Settlement Period”), the Company shall be permitted to provide no less than 10 Scheduled Trading Days’ notice prior to the Ex-Dividend Date for the applicable issuance or distribution, in which case the Company shall be required to settle all conversions of Notes with a Conversion Date occurring during the Distribution Trigger Irrevocable Physical Settlement Period by Physical Settlement, and the Company shall describe the same in such notice. Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at any time until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take place, in each case, even if the Notes are not otherwise convertible at such time. Notwithstanding the foregoing, Holders may not convert their Notes under this Section 14.01(b)(ii) if they participate (other than in the case of a share split or share combination) at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described under this Section 14.01(b)(ii)(A) or (B) without having to convert their Notes as if they held a number of shares of Common Stock equal to the then-effective Conversion Rate multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. Neither the Trustee not the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether an issuance or distribution described in this clause (ii) has occurred.
(ii) If a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section 15.02, or if the Company is a party to a Share Exchange Event (other than a Share Exchange Event that is solely for the purpose of changing the Company’s jurisdiction of organization that does not constitute a Fundamental Change or Make-Whole Fundamental Change) that occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, in each case, pursuant to which the Common Stock would be converted into cash, securities or other assets, all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the effective date of the transaction until the earlier of (x) 35 Trading Days after the effective date of such transaction or, if such transaction also constitutes a Fundamental Change, until the close of business on the Business Day immediately preceding the related Fundamental Change Repurchase Date and (y) the second Scheduled Trading Day immediately preceding the Maturity Date. The Company shall notify in writing Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the effective date of such transaction. Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether a Fundamental Change or a Make-Whole Fundamental Change has occurred.
(iii) Prior to the close of business on the Business Day immediately preceding August 15, 2029, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar quarter commencing after the calendar quarter ending on March 31, 2025 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day. The Company shall determine at the beginning of each calendar quarter commencing after March 31, 2025 whether the Notes may be surrendered for conversion in accordance with this clause (iv) and shall provide written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) if the Notes become convertible in accordance with this clause (iv). Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether the condition set forth in this clause (iv) has been met.
(iv) If the Company calls any or all of the Notes for redemption pursuant to Article 16 prior to the close of business on the Business Day immediately preceding August 15, 2029, then a Holder may surrender all or any part of such of its Notes as called for redemption for conversion at any time prior to the close of business on the second Scheduled Trading Day prior to the Redemption Date, even if the Notes are not otherwise convertible at such time. After that time, the right to convert such Notes pursuant to this Section 14.01(b)(v) shall expire, unless the Company defaults in the payment of the Redemption Price, in which case a Holder of Notes may convert its Notes until the Redemption Price has been paid or duly provided for.
Appears in 1 contract
Sources: Indenture (Avalara, Inc.)
Conversion Privilege. (a) Subject to and upon compliance with the provisions of this Article 14, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the Business Day immediately preceding August February 15, 2029 2026 under the circumstances and during the periods set forth in Section 14.01(b), and (ii) regardless of the conditions described in Section 14.01(b), on or after August February 15, 2029 2026 and prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 62.3539 95.5338 shares of Common Stock (subject to adjustment as provided in this Article 14, the “Conversion Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.02, the “Conversion Obligation”).
(ab) (i) Prior to the close of business on the Business Day immediately preceding August February 15, 20292026, a Holder may surrender all or any portion of its Notes for conversion at any time during the five Business Day period immediately after any five ten consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this subsection (b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on each such Trading Day and the Conversion Rate on each such Trading Day. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this subsection (b)(i) and the definition of Trading Price set forth in this Indenture. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes unless the Company has requested such determination, and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes) unless a Holder of at least $1,000,000 aggregate principal amount of Notes requests in writing that the Company make such a determination and provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the Conversion Rate on such Trading Day, at which time the Company shall instruct three nationally recognized securities dealers to deliver bids and instruct the Bid Solicitation Agent (if other than the Company) to determine, or if the Company is acting as Bid Solicitation Agent, the Company shall determine, the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not not, when the Company is required to, instruct the Bid Solicitation Agent to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentence, or if the Company instructs gives such instruction to the Bid Solicitation Agent to obtain bids and the Bid Solicitation Agent fails to make such determination, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, then, in either case, the Trading Price per $1,000 principal amount of Notes on any date shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company shall so notify in writing the Holders, the Trustee and the Conversion Agent (if other than the Trustee)) in writing. Any such determination shall be conclusive absent manifest error. If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate for such date, the Company shall so notify in writing the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee).
(i) If, prior to the close of business on the Business Day immediately preceding August 15, 2029, the Company elects to:
(A) issue to all or substantially all holders of the Common Stock any rights, options or warrants (other than in connection with a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock) entitling them, for a period of not more than 45 calendar days after the announcement date of such issuance, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance; or
(B) distribute to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase securities of the Company (other than pursuant to a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock), which distribution has a per share value, as reasonably determined by the Board of Directors, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution, then, in either case, the Company shall notify in writing all Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) at least 30 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan, no later than the Business Day after the Company becomes aware that such separation has occurred or will occur); provided, however, that if the Company elects Physical Settlement (to the extent that the Company has not elected another Settlement Method to apply, including pursuant to Section 14.02) in the applicable notice in respect of any conversions that occurs from, and including, the date the Company provides such notice to, and including, the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or issuance (or, if earlier, the date the Company announces that such issuance or distribution will not take place) (the “Distribution Trigger Irrevocable Physical Settlement Period”), the Company shall be permitted to provide no less than 10 Scheduled Trading Days’ notice prior to the Ex-Dividend Date for the applicable issuance or distribution, in which case the Company shall be required to settle all conversions of Notes with a Conversion Date occurring during the Distribution Trigger Irrevocable Physical Settlement Period by Physical Settlement, and the Company shall describe the same in such notice. Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at any time until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take place, in each case, even if the Notes are not otherwise convertible at such time. Notwithstanding the foregoing, Holders may not convert their Notes under this Section 14.01(b)(ii) if they participate (other than in the case of a share split or share combination) at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described under this Section 14.01(b)(ii)(A) or (B) without having to convert their Notes as if they held a number of shares of Common Stock equal to the then-effective Conversion Rate multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. Neither the Trustee not the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether an issuance or distribution described in this clause (ii) has occurred.
(ii) If a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section 15.02, or if the Company is a party to a Share Exchange Event (other than a Share Exchange Event that is solely for the purpose of changing the Company’s jurisdiction of organization that does not constitute a Fundamental Change or Make-Whole Fundamental Change) that occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, in each case, pursuant to which the Common Stock would be converted into cash, securities or other assets, all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the effective date of the transaction until the earlier of (x) 35 Trading Days after the effective date of such transaction or, if such transaction also constitutes a Fundamental Change, until the close of business on the Business Day immediately preceding the related Fundamental Change Repurchase Date and (y) the second Scheduled Trading Day immediately preceding the Maturity Date. The Company shall notify in writing Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the effective date of such transaction. Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether a Fundamental Change or a Make-Whole Fundamental Change has occurred.
(iii) Prior to the close of business on the Business Day immediately preceding August 15, 2029, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar quarter commencing after the calendar quarter ending on March 31, 2025 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day. The Company shall determine at the beginning of each calendar quarter commencing after March 31, 2025 whether the Notes may be surrendered for conversion in accordance with this clause (iv) and shall provide written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing and thereafter neither the Company nor the Bid Solicitation Agent (if other than the Company) shall be required to solicit bids (or determine the Trading Price of the Notes become convertible in accordance with this clause (iv). Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether the condition as set forth in this clause Indenture) again until a new Holder request is made as provided in this subsection (iv) has been metb)(i).
(iv) If the Company calls any or all of the Notes for redemption pursuant to Article 16 prior to the close of business on the Business Day immediately preceding August 15, 2029, then a Holder may surrender all or any part of such of its Notes as called for redemption for conversion at any time prior to the close of business on the second Scheduled Trading Day prior to the Redemption Date, even if the Notes are not otherwise convertible at such time. After that time, the right to convert such Notes pursuant to this Section 14.01(b)(v) shall expire, unless the Company defaults in the payment of the Redemption Price, in which case a Holder of Notes may convert its Notes until the Redemption Price has been paid or duly provided for.
Appears in 1 contract
Conversion Privilege. (a) Subject to and upon compliance with the provisions of this Article Article 14, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section Section 14.01(b), at any time prior to the close of business on the Business Day immediately preceding August March 15, 2029 2025, under the circumstances and during the periods set forth in Section Section 14.01(b), and (ii) regardless of the conditions described in Section Section 14.01(b), on or after August March 15, 2029 2025 and prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 62.3539 90.8038 shares of Common Stock (subject to adjustment as provided in this Article Article 14, the “Conversion Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section Section 14.02, the “Conversion Obligation”).
(ab) (i) Prior to the close of business on the Business Day immediately preceding August March 15, 20292025, a Holder may surrender all or any portion of its Notes for conversion at any time during the five Business Day period immediately after any five consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this subsection (b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on each such Trading Day and the Conversion Rate on each such Trading Day. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this subsection (b)(i) and the definition of Trading Price set forth in this Indenture. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes unless the Company has requested such determination, and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes) unless a Holder of at least $1,000,000 aggregate principal amount of Notes requests in writing that the Company make such a determination and provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the Conversion Rate on such Trading Day, at which time the Company shall instruct three nationally recognized securities dealers to deliver bids and instruct the Bid Solicitation Agent (if other than the Company) to determine, or if the Company is acting as Bid Solicitation Agent, the Company shall determine, the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not instruct the Bid Solicitation Agent to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentence, or if the Company instructs the Bid Solicitation Agent to obtain bids and the Bid Solicitation Agent fails to make such determination, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, then, in either case, the Trading Price per $1,000 principal amount of Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company shall so notify in writing the Holders, the Trustee and the Conversion Agent (if other than the Trustee). If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate for such dateTrading Day, the Company shall so notify in writing the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee).
(i) If, prior to the close of business on the Business Day immediately preceding August 15, 2029, the Company elects to:
(A) issue to all or substantially all holders of the Common Stock any rights, options or warrants (other than in connection with a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock) entitling them, for a period of not more than 45 calendar days after the announcement date of such issuance, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance; or
(B) distribute to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase securities of the Company (other than pursuant to a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock), which distribution has a per share value, as reasonably determined by the Board of Directors, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution, then, in either case, the Company shall notify in writing all Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) at least 30 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan, no later than the Business Day after the Company becomes aware that such separation has occurred or will occur); provided, however, that if the Company elects Physical Settlement (to the extent that the Company has not elected another Settlement Method to apply, including pursuant to Section 14.02) in the applicable notice in respect of any conversions that occurs from, and including, the date the Company provides such notice to, and including, the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or issuance (or, if earlier, the date the Company announces that such issuance or distribution will not take place) (the “Distribution Trigger Irrevocable Physical Settlement Period”), the Company shall be permitted to provide no less than 10 Scheduled Trading Days’ notice prior to the Ex-Dividend Date for the applicable issuance or distribution, in which case the Company shall be required to settle all conversions of Notes with a Conversion Date occurring during the Distribution Trigger Irrevocable Physical Settlement Period by Physical Settlement, and the Company shall describe the same in such notice. Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at any time until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take place, in each case, even if the Notes are not otherwise convertible at such time. Notwithstanding the foregoing, Holders may not convert their Notes under this Section 14.01(b)(ii) if they participate (other than in the case of a share split or share combination) at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described under this Section 14.01(b)(ii)(A) or (B) without having to convert their Notes as if they held a number of shares of Common Stock equal to the then-effective Conversion Rate multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. Neither the Trustee not the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether an issuance or distribution described in this clause (ii) has occurred.
(ii) If a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section 15.02, or if the Company is a party to a Share Exchange Event (other than a Share Exchange Event that is solely for the purpose of changing the Company’s jurisdiction of organization that does not constitute a Fundamental Change or Make-Whole Fundamental Change) that occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, in each case, pursuant to which the Common Stock would be converted into cash, securities or other assets, all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the effective date of the transaction until the earlier of (x) 35 Trading Days after the effective date of such transaction or, if such transaction also constitutes a Fundamental Change, until the close of business on the Business Day immediately preceding the related Fundamental Change Repurchase Date and (y) the second Scheduled Trading Day immediately preceding the Maturity Date. The Company shall notify in writing Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the effective date of such transaction. Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether a Fundamental Change or a Make-Whole Fundamental Change has occurred.
(iii) Prior to the close of business on the Business Day immediately preceding August 15, 2029, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar quarter commencing after the calendar quarter ending on March 31, 2025 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day. The Company shall determine at the beginning of each calendar quarter commencing after March 31, 2025 whether the Notes may be surrendered for conversion in accordance with this clause (iv) and shall provide written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) if the Notes become convertible in accordance with this clause (iv). Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether the condition set forth in this clause (iv) has been met.
(iv) If the Company calls any or all of the Notes for redemption pursuant to Article 16 prior to the close of business on the Business Day immediately preceding August 15, 2029, then a Holder may surrender all or any part of such of its Notes as called for redemption for conversion at any time prior to the close of business on the second Scheduled Trading Day prior to the Redemption Date, even if the Notes are not otherwise convertible at such time. After that time, the right to convert such Notes pursuant to this Section 14.01(b)(v) shall expire, unless the Company defaults in the payment of the Redemption Price, in which case a Holder of Notes may convert its Notes until the Redemption Price has been paid or duly provided for.
Appears in 1 contract
Sources: Indenture (Marcus Corp)
Conversion Privilege. (a) Subject to and upon compliance with the provisions of this Article 14, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the Business Day immediately preceding August December 15, 2029 under the circumstances and during the periods set forth in Section 14.01(b), and (ii) regardless of the conditions described in Section 14.01(b), on or after August December 15, 2029 and prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 62.3539 67.5858 shares of Common Stock (subject to adjustment as provided in this Article 14, the “Conversion Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.02, the “Conversion Obligation”).
(a) (i) Prior to the close of business on the Business Day immediately preceding August December 15, 2029, a Holder may surrender all or any portion of its Notes for conversion at any time during the five Business Day period immediately after following any five consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this subsection (b)(i), for on each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on each such Trading Day and the Conversion Rate on each such Trading Day. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this subsection (b)(i) and the definition of Trading Price set forth in this Indenture. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes unless the Company has requested such determination, and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes) unless a Holder of at least $1,000,000 aggregate principal amount of Notes requests in writing that the Company make such a determination and provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the Conversion Rate on such Trading Day, at which time the Company shall instruct three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price to deliver bids and instruct the Bid Solicitation Agent (if other than the Company) to determine, or if the Company is acting as Bid Solicitation Agent, the Company shall determine, the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not instruct the Bid Solicitation Agent to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentence, or if the Company instructs the Bid Solicitation Agent to obtain bids and the Bid Solicitation Agent fails to make such determination, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, then, in either case, the Trading Price per $1,000 principal amount of Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company shall so notify in writing the Holders, the Trustee and the Conversion Agent (if other than the Trustee). If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate for such date, the Company shall so notify in writing the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee).
(iii) If, prior to the close of business on the Business Day immediately preceding August December 15, 2029, the Company elects to:
(A) issue to all or substantially all holders of the Common Stock any rights, options or warrants (other than in connection with a stockholder rights plan so long as such rights have not no separated from the shares of the Common Stock) entitling them, for a period of not more than 45 calendar days after the announcement date of such issuance, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance; or
(B) distribute to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase securities of the Company (other than pursuant to a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock), which distribution has a per share value, as reasonably determined by the Board of Directors, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution, then, in either case, the Company shall notify in writing all Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) at least 30 50 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan, no later than the Business Day after the Company becomes aware that such separation has occurred or will occur)distribution; provided, however, that if the Company elects Physical Settlement (to the extent that the Company has not elected another Settlement Method to apply, including pursuant to Section 14.02) in the applicable notice in respect of any conversions that occurs from, and including, the date the Company provides such notice to, and including, the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or issuance (or, if earlier, the date the Company announces that such issuance or distribution will not take place) (the “Distribution Trigger Irrevocable Physical Settlement Period”), the Company shall be permitted to provide no less than 10 Scheduled Trading Days’ notice prior to the Ex-Dividend Date for the applicable issuance or distribution, in which case the Company shall be required to settle all conversions of Notes with a Conversion Date occurring during the Distribution Trigger Irrevocable Physical Settlement Period by Physical Settlement, and the Company shall describe the same in such notice. Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at any time until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take place, in each case, even if the Notes are not otherwise convertible at such time. Notwithstanding the foregoing, Holders may not convert their Notes under this Section 14.01(b)(ii) if they participate (other than in the case of a share split or share combination) at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described under this Section 14.01(b)(ii)(A) or (B) without having to convert their Notes as if they held a number of shares of Common Stock equal to the then-effective Conversion Rate multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. Neither the Trustee not the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether an issuance or distribution described in this clause (ii) has occurred.
(iiiii) If a transaction or event that constitutes a Fundamental Change or a Make-Make- Whole Fundamental Change occurs prior to the close of business on the Business Day immediately preceding August December 15, 2029, regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section 15.02, or if the Company is a party to a Share Exchange Event (other than a Share Exchange Event that is solely for the purpose of changing the Company’s jurisdiction of organization that does not constitute a Fundamental Change or Make-Whole Fundamental Change) that occurs prior to the close of business on the Business Day immediately preceding August December 15, 2029, in each case, pursuant to which the Common Stock would be converted into cash, securities or other assets, all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the effective date of the transaction until the earlier of (x) 35 Trading Days after the effective date of such transaction or, if such transaction also constitutes a Fundamental Change, until the close of business on the Business Day immediately preceding the related Fundamental Change Repurchase Date and (y) the second Scheduled Trading Day immediately preceding the Maturity Date. The Company shall notify in writing Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the effective date of such transaction. Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether a Fundamental Change or a Make-Whole Fundamental Change has occurred.
(iiiiv) Prior to the close of business on the Business Day immediately preceding August December 15, 2029, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar quarter commencing after the calendar quarter ending on March 31, 2025 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for on each of at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar quarter is greater than or equal to 130% of the Conversion Price on each applicable such Trading Day. The Company shall determine at the beginning of each calendar quarter commencing after March 31, 2025 whether the Notes may be surrendered for conversion in accordance with this clause (iv) and shall provide written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) if the Notes become convertible in accordance with this clause (iv). Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether the condition set forth in this clause (iv) has been met.
(ivv) If the Company calls any or all of the Notes for redemption pursuant to Article 16 prior to the close of business on the Business Day immediately preceding August December 15, 2029, then a Holder may surrender all or any part of such of its Notes as called for redemption for conversion at any time prior to the close of business on the second Scheduled Trading Day prior to the Redemption Date, even if the Notes are not otherwise convertible at such time. After that time, the right to convert such Notes pursuant to this Section 14.01(b)(v) shall expire, unless the Company defaults in the payment of the Redemption Price, in which case a Holder of Notes may convert its Notes until the Redemption Price has been paid or duly provided for.
Appears in 1 contract
Sources: Indenture (Cleanspark, Inc.)
Conversion Privilege. (a) Subject to and upon compliance with the provisions of this Article 14, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the Business Day immediately preceding August 15July 1, 2029 2030 under the circumstances and during the periods set forth in Section 14.01(b), and (ii) regardless of the conditions described in Section 14.01(b), on or after August 15July 1, 2029 2030 and prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 62.3539 5.1338 shares of Common Stock (subject to adjustment as provided in this Article 14, the “Conversion Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.02, the “Conversion Obligation”). The Trustee shall have no obligation to make any determination as to whether any of the conditions described in Section 14.01(b) have been satisfied.
(a) (i) Prior to the close of business on the Business Day immediately preceding August 15July 1, 20292030, a Holder may surrender all or any portion of its Notes for conversion at any time during the five Business Day period immediately after any five ten consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined by the Bid Solicitation Agent following a request by a Holder of Notes in accordance with this subsection (b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on each such Trading Day and the Conversion Rate on each such Trading Day. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this subsection (b)(i) and the definition of Trading Price set forth in this Indenture. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes unless the Company has requested such determination, and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes) unless a Holder or Holders of at least $1,000,000 2,000,000 aggregate principal amount of Notes requests in writing that the Company make such a determination and provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the Conversion Rate on such Trading Day, at which time the Company shall instruct three nationally recognized securities dealers to deliver bids and instruct the Bid Solicitation Agent (if other than the Company) to determine, or if the Company is acting as Bid Solicitation Agent, the Company shall determine, the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not not, when the Company is required to, instruct the Bid Solicitation Agent to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentence, or if the Company instructs gives such instruction to the Bid Solicitation Agent to obtain bids and the Bid Solicitation Agent fails to make such determination, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, then, in either case, the Trading Price per $1,000 principal amount of Notes on any date shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company shall so notify in writing the Holders, the Trustee and the Conversion Agent (if other than the Trustee)) in writing. Any such determination shall be conclusive absent manifest error. If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes on any Trading Day is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate for such dateTrading Day, the Company shall so notify in writing the Holders of the NotesHolders, the Trustee and the Conversion Agent (if other than the Trustee) in writing and thereafter neither the Company nor the Bid Solicitation Agent (if other than the Company) shall be required to solicit bids (or determine the Trading Price of the Notes as set forth in this Indenture) again unless a new Holder request is made as provided in this subsection (b)(i).
(iii) If, prior to the close of business on the Business Day immediately preceding August 15July 1, 20292030, the Company elects to:
(A) issue distribute to all or substantially all holders of the Common Stock any rights, options or warrants (other than in connection with a stockholder rights plan so long as prior to the separation of such rights have not separated from the shares of the Common Stock) entitling them, for a period of not more than 45 60 calendar days after the announcement date of such issuancedistribution, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuancedistribution; or
(B) distribute to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase securities of the Company (other than pursuant to in connection with a stockholder rights plan so long as prior to separation of such rights have not separated from the shares of the Common Stock), which distribution has a per share value, as reasonably determined by the Board of DirectorsCompany in good faith, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution, then, in either case, the Company shall notify in writing all Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) in writing at least 30 56 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan, no later than the Business Day as soon as reasonably practicable after the Company becomes aware that such separation or triggering event has occurred or will occur); provided, however, that if the Company elects Physical Settlement (to the extent that the Company has not elected another Settlement Method to apply, including pursuant to Section 14.02) in the applicable notice in respect of any conversions that occurs from, and including, the date the Company provides such notice to, and including, the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or issuance (or, if earlier, the date the Company announces that such issuance or distribution will not take place) (the “Distribution Trigger Irrevocable Physical Settlement Period”), the Company shall be permitted to provide no less than 10 Scheduled Trading Days’ notice prior to the Ex-Dividend Date for the applicable issuance or distribution, in which case the Company shall be required to settle all conversions of Notes with a Conversion Date occurring during the Distribution Trigger Irrevocable Physical Settlement Period by Physical Settlement, and the Company shall describe the same in such notice. Once the Company has given such noticenotice (a “Certain Distributions Notice”), a Holder may surrender all or any portion of its Notes for conversion at any time until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take placeplace (or, if later, in the case of a separation of rights issued pursuant to a stockholder rights plan, until the 20th Trading Day following the date of such Certain Distributions Notice), in each case, even if the Notes are not otherwise convertible at such time. Notwithstanding the foregoing, ; provided that Holders may not convert their Notes under pursuant to this Section 14.01(b)(iisubsection (b)(ii) if they participate (other than in the case of a share split or share combination) participate, at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described under this Section 14.01(b)(ii)(Ain clause (A) or (B) of this subsection (b)(ii) without having to convert their Notes as if they held a number of shares of Common Stock equal to the then-effective Conversion Rate Rate, multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. Neither the Trustee not the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether an issuance or distribution described in this clause (ii) has occurred▇▇▇▇▇▇.
(iiiii) If (A) a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close of business on the Business Day immediately preceding August 15July 1, 20292030, regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section 15.02, or if (B) the Company is a party to a Share Exchange Event (other than a Share Exchange Event that is solely for the purpose of changing the Company’s jurisdiction of organization that (x) does not constitute a Fundamental Change or a Make-Whole Fundamental ChangeChange and results in a reclassification, conversion or exchange of outstanding shares of Common Stock solely into shares of common stock of the surviving entity and such common stock becomes Reference Property for the Notes) that occurs prior to the close of business on the Business Day immediately preceding August 15July 1, 20292030, in (each casesuch Fundamental Change, pursuant to which the Common Stock would be converted into cashMake-Whole Fundamental Change or Share Exchange Event, securities or other assetsa “Corporate Event”), all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the effective date of the transaction such Corporate Event until the earlier of (x) 35 Trading Days after the effective date of such transaction Corporate Event (or, if the Company gives notice after the effective date of such Corporate Event, until 35 Trading Days after the date the Company gives notice of such Corporate Event) or, if such transaction Corporate Event also constitutes a Fundamental Change (other than an Exempted Fundamental Change), until the close of business on the Business Day immediately preceding the related Fundamental Change Repurchase Date and (y) the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date. The Company shall notify in writing Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than in writing as promptly as practicable following the effective date of such transaction. Neither Corporate Event, but in no event later than one Business Day after the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination effective date of whether a Fundamental Change or a Make-Whole Fundamental Change has occurredsuch Corporate Event.
(iiiiv) Prior to the close of business on the Business Day immediately preceding August 15July 1, 20292030, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar fiscal quarter commencing after the calendar fiscal quarter ending on March December 31, 2025 (and only during such calendar fiscal quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar fiscal quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day. The Company shall determine at the beginning of each calendar quarter commencing after March 31, 2025 whether the Notes may be surrendered for conversion in accordance with this clause (iv) and shall provide written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) if the Notes become convertible in accordance with this clause (iv). Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether the condition set forth in this clause (iv) has been met.
(ivv) If the Company calls any or all of the Notes for redemption Optional Redemption pursuant to Article 16 prior to the close of business on the Business Day immediately preceding August 15, 202916, then a Holder may surrender all or any part of such portion of its Called Notes as called for redemption for conversion at any time prior to the close of business on the second Scheduled Trading Day prior to immediately preceding the Redemption Date, even if the Called Notes are not otherwise convertible at such time. After that time, the right to convert such Called Notes pursuant to this Section 14.01(b)(v) on account of the Company’s delivery of a Notice of Redemption shall expire, unless the Company defaults in the payment of the Redemption Price, in which case a Holder of Called Notes may convert all or a portion of its Called Notes until the close of business on the Scheduled Trading Day immediately preceding the date on which the Redemption Price has been paid or duly provided for. If the Company elects to redeem fewer than all of the outstanding Notes for redemption pursuant to Article 16, and the Holder of any Note (or any owner of a beneficial interest in any Global Note) is reasonably not able to determine, prior to the close of business on the 54th Scheduled Trading Day immediately preceding the relevant Redemption Date, whether such Note or beneficial interest, as applicable, is to be redeemed pursuant to such Optional Redemption (and, as a result thereof, convertible on account of the related Notice of Redemption in accordance with the provisions of this Indenture), then such Holder or owner, as applicable, shall be entitled to convert such Note or beneficial interest, as applicable, at any time during the related Redemption Period, and each such conversion shall be deemed to be of a Note called for Optional Redemption, and such Note or beneficial interest shall be deemed called for Optional Redemption solely for the purposes of such conversion (“Deemed Redemption”). If a Holder elects to convert Called Notes during the related Redemption Period, such conversion will be deemed “in connection with” the relevant Notice of Redemption pursuant to Section 14.03(a), and the Company shall, under certain circumstances, increase the Conversion Rate for such Called Notes pursuant to Section 14.03. Accordingly, if the Company elects to redeem fewer than all of the outstanding Notes pursuant to Article 16, Holders of the Notes that are not Called Notes will not be entitled to convert such Notes pursuant to this Section 14.01(b)(v) and will not be entitled to an increase in the Conversion Rate on account of the Notice of Redemption for conversions of such Notes during the related Redemption Period, even if such Notes are otherwise convertible pursuant to any other provision of this Section 14.01(b).
Appears in 1 contract
Conversion Privilege. (a) Subject to and upon compliance with the provisions of this Article Article 14, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section Section 14.01(b), at any time prior to the close of business on the Business Day immediately preceding August 151, 2029 under the circumstances and during the periods set forth in Section 14.01(b), and (ii) regardless of the conditions described in Section Section 14.01(b), on or after August 151, 2029 and prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 62.3539 17.4662 shares of Common Stock (subject to adjustment as provided in this Article Article 14, the “Conversion Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section Section 14.02, the “Conversion Obligation”). The Trustee shall have no obligation to make any determination as to whether any of the conditions described in Section 14.01(b) have been satisfied.
(a) (i) Prior to the close of business on the Business Day immediately preceding August 151, 2029, a Holder may surrender all or any portion of its Notes for conversion at any time during the five Business Day period immediately after any five ten consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this subsection (b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on each such Trading Day and the Conversion Rate on each such Trading Day. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this subsection (b)(i) and the definition of Trading Price set forth in this Indenture. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes unless the Company has requested such determination, and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes) unless a Holder or Holders of at least $1,000,000 2,000,000 aggregate principal amount of Notes requests in writing that the Company make such a determination and provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the Conversion Rate on such Trading Day, at which time the Company shall instruct three nationally recognized securities dealers to deliver bids and instruct the Bid Solicitation Agent (if other than the Company) to determine, or if the Company is acting as Bid Solicitation Agent, the Company shall determine, the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not not, when the Company is required to, instruct the Bid Solicitation Agent to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentence, or if the Company instructs gives such instruction to the Bid Solicitation Agent to obtain bids and the Bid Solicitation Agent fails to make such determination, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, then, in either case, the Trading Price per $1,000 principal amount of Notes on any date shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company shall so notify in writing the Holders, the Trustee and the Conversion Agent (if other than the Trustee)) in writing. Any such determination shall be conclusive absent manifest error. If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate for such date, the Company shall so notify in writing the Holders of the NotesHolders, the Trustee and the Conversion Agent (if other than the Trustee) in writing and thereafter neither the Company nor the Bid Solicitation Agent (if other than the Company) shall be required to solicit bids (or determine the Trading Price of the Notes as set forth in this Indenture) again unless a new Holder request is made as provided in this subsection (b)(i).
(iii) If, prior to the close of business on the Business Day immediately preceding August 151, 2029, the Company elects to:
(A) issue distribute to all or substantially all holders of the Common Stock any rights, options or warrants (other than in connection with a stockholder rights plan so long as prior to the separation of such rights have not separated from the shares of the Common Stock) entitling them, for a period of not more than 45 60 calendar days after the announcement date of such issuancedistribution, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuancedistribution; or
(B) distribute to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase securities of the Company (other than pursuant to in connection with a stockholder rights plan so long as prior to separation of such rights have not separated from the shares of the Common Stock), which distribution has a per share value, as reasonably determined by the Board of DirectorsCompany in good faith, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution, then, in either case, the Company shall notify in writing all Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) in writing at least 30 46 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan, no later than the Business Day as soon as reasonably practicable after the Company becomes aware that such separation or triggering event has occurred or will occur); provided, however, that if the Company elects Physical Settlement (to the extent that the Company has not elected another Settlement Method to apply, including pursuant to Section 14.02) in the applicable notice in respect of any conversions that occurs from, and including, the date the Company provides such notice to, and including, the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or issuance (or, if earlier, the date the Company announces that such issuance or distribution will not take place) (the “Distribution Trigger Irrevocable Physical Settlement Period”), the Company shall be permitted to provide no less than 10 Scheduled Trading Days’ notice prior to the Ex-Dividend Date for the applicable issuance or distribution, in which case the Company shall be required to settle all conversions of Notes with a Conversion Date occurring during the Distribution Trigger Irrevocable Physical Settlement Period by Physical Settlement, and the Company shall describe the same in such notice. Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at any time until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take place, in each case, even if the Notes are not otherwise convertible at such time. Notwithstanding the foregoing, ; provided that Holders may not convert their Notes under pursuant to this Section 14.01(b)(iisubsection (b)(ii) if they participate (other than in the case of a share split or share combination) participate, at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described under this Section 14.01(b)(ii)(Ain clause (A) or (B) of this subsection (b)(ii) without having to convert their Notes as if they held a number of shares of Common Stock equal to the then-effective Conversion Rate Rate, multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. Neither the Trustee not the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether an issuance or distribution described in this clause (ii) has occurred.
(iiiii) If (A) a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close of business on the Business Day immediately preceding August 151, 2029, regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section Section 15.02, or if (B) the Company is a party to a Share Exchange Event (other than a Share Exchange Event that is solely for the purpose of changing the Company’s jurisdiction of organization that (x) does not constitute a Fundamental Change or a Make-Whole Fundamental ChangeChange and (y) results in a reclassification, conversion or exchange of outstanding shares of Common Stock solely into shares of common stock of the surviving entity and such common stock becomes Reference Property for the Notes) that occurs prior to the close of business on the Business Day immediately preceding August 151, 2029, in (each casesuch Fundamental Change, pursuant to which the Common Stock would be converted into cashMake-Whole Fundamental Change or Share Exchange Event, securities or other assetsa “Corporate Event”), all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the effective date of the transaction such Corporate Event until the earlier of (x) 35 Trading Days after the effective date of such transaction Corporate Event (or, if the Company gives notice after the effective date of such Corporate Event, until 35 Trading Days after the date the Company gives notice of such Corporate Event) or, if such transaction Corporate Event also constitutes a Fundamental Change (other than an Exempted Fundamental Change), until the close of business on the Business Day immediately preceding the related Fundamental Change Repurchase Date and (y) the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date. The Company shall notify in writing Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than in writing as promptly as practicable following the effective date of such transaction. Neither Corporate Event, but in no event later than one Business Day after the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination effective date of whether a Fundamental Change or a Make-Whole Fundamental Change has occurredsuch Corporate Event.
(iiiiv) Prior to the close of business on the Business Day immediately preceding August 151, 2029, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar fiscal quarter commencing after the calendar fiscal quarter ending on March 31, 2025 (and only during such calendar fiscal quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar fiscal quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day. The Company shall determine at the beginning of each calendar quarter commencing after March 31, 2025 whether the Notes may be surrendered for conversion in accordance with this clause (iv) and shall provide written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) if the Notes become convertible in accordance with this clause (iv). Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether the condition set forth in this clause (iv) has been met.
(ivv) If the Company calls any or all of the Notes for redemption Optional Redemption pursuant to Article 16 prior to the close of business on the Business Day immediately preceding August 15, 2029Article 16, then a Holder may surrender all or any part of such portion of its Called Notes as called for redemption for conversion at any time prior to the close of business on the second Scheduled Trading Day prior to immediately preceding the Redemption Date, even if the Called Notes are not otherwise convertible at such time. After that time, the right to convert such Called Notes pursuant to this Section 14.01(b)(v) on account of the Company’s delivery of a Notice of Redemption shall expire, unless the Company defaults in the payment of the Redemption Price, in which case a Holder of Called Notes may convert all or a portion of its Called Notes until the close of business on the Scheduled Trading Day immediately preceding the date on which the Redemption Price has been paid or duly provided for. If the Company elects to redeem fewer than all of the outstanding Notes for redemption pursuant to Article 16, and the Holder of any Note (or any owner of a beneficial interest in any Global Note) is reasonably not able to determine, prior to the close of business on the 44th Scheduled Trading Day immediately preceding the relevant Redemption Date, whether such Note or beneficial interest, as applicable, is to be redeemed pursuant to such Optional Redemption (and, as a result thereof, convertible on account of the related Notice of Redemption in accordance with the provisions of this Indenture), then such Holder or owner, as applicable, shall be entitled to convert such Note or beneficial interest, as applicable, at any time during the related Redemption Period, and each such conversion shall be deemed to be of a Note called for Optional Redemption, and such Note or beneficial interest shall be deemed called for Optional Redemption solely for the purposes of such conversion (“Deemed Redemption”). If a Holder elects to convert Called Notes during the related Redemption Period, such conversion will be deemed “in connection with” the relevant Notice of Redemption pursuant to Section 14.03(a), and the Company shall, under certain circumstances, increase the Conversion Rate for such Called Notes pursuant to Section 14.03. Accordingly, if the Company elects to redeem fewer than all of the outstanding Notes pursuant to Article 16, Holders of the Notes that are not Called Notes will not be entitled to convert such Notes pursuant to this Section 14.01(b)(v) and will not be entitled to an increase in the Conversion Rate on account of the Notice of Redemption for conversions of such Notes during the related Redemption Period, even if such Notes are otherwise convertible pursuant to any other provision of this Section 14.01(b).
Appears in 1 contract
Sources: Indenture (Omnicell, Inc.)
Conversion Privilege. (a) Subject to and upon compliance with the provisions of this Article 14, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the Business Day immediately preceding August September 15, 2029 2021 under the circumstances and during the periods set forth in Section 14.01(b), and (ii) regardless of the conditions described in Section 14.01(b), on or after August September 15, 2029 2021 and prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 62.3539 20.0673 shares of Common Stock (subject to adjustment as provided in this Article 14, the “Conversion Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.02, the “Conversion Obligation”).
(ab) (i) Prior to the close of business on the Business Day immediately preceding August September 15, 20292021, a Holder may surrender all or any portion of its Notes for conversion at any time during the five Business Day period immediately after any five consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this subsection (b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on each such Trading Day and the Conversion Rate on each such Trading Day. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this subsection (b)(i) and the definition of Trading Price set forth in this Indenture. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes unless the Company has requested such determination, and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes) unless a Holder of at least $1,000,000 aggregate principal amount of Notes requests in writing that the Company make such a determination and provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the Conversion Rate on such Trading Day, at which time the Company shall instruct three nationally recognized securities dealers to deliver bids and instruct the Bid Solicitation Agent (if other than the Company) to determine, or if the Company is acting as Bid Solicitation Agent, the Company shall determine, the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not instruct the Bid Solicitation Agent to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentence, or if the Company instructs the Bid Solicitation Agent to obtain bids and the Bid Solicitation Agent fails to make such determination, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, then, in either case, the Trading Price per $1,000 principal amount of Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company shall so notify in writing the Holders, the Trustee and the Conversion Agent (if other than the Trustee). If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate for such date, the Company shall so notify in writing the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee).
(i) If, prior to the close of business on the Business Day immediately preceding August 15, 2029, the Company elects to:
(A) issue to all or substantially all holders of the Common Stock any rights, options or warrants (other than in connection with a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock) entitling them, for a period of not more than 45 calendar days after the announcement date of such issuance, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance; or
(B) distribute to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase securities of the Company (other than pursuant to a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock), which distribution has a per share value, as reasonably determined by the Board of Directors, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution, then, in either case, the Company shall notify in writing all Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) at least 30 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan, no later than the Business Day after the Company becomes aware that such separation has occurred or will occur); provided, however, that if the Company elects Physical Settlement (to the extent that the Company has not elected another Settlement Method to apply, including pursuant to Section 14.02) in the applicable notice in respect of any conversions that occurs from, and including, the date the Company provides such notice to, and including, the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or issuance (or, if earlier, the date the Company announces that such issuance or distribution will not take place) (the “Distribution Trigger Irrevocable Physical Settlement Period”), the Company shall be permitted to provide no less than 10 Scheduled Trading Days’ notice prior to the Ex-Dividend Date for the applicable issuance or distribution, in which case the Company shall be required to settle all conversions of Notes with a Conversion Date occurring during the Distribution Trigger Irrevocable Physical Settlement Period by Physical Settlement, and the Company shall describe the same in such notice. Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at any time until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take place, in each case, even if the Notes are not otherwise convertible at such time. Notwithstanding the foregoing, Holders may not convert their Notes under this Section 14.01(b)(ii) if they participate (other than in the case of a share split or share combination) at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described under this Section 14.01(b)(ii)(A) or (B) without having to convert their Notes as if they held a number of shares of Common Stock equal to the then-effective Conversion Rate multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. Neither the Trustee not the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether an issuance or distribution described in this clause (ii) has occurred.
(ii) If a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section 15.02, or if the Company is a party to a Share Exchange Event (other than a Share Exchange Event that is solely for the purpose of changing the Company’s jurisdiction of organization that does not constitute a Fundamental Change or Make-Whole Fundamental Change) that occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, in each case, pursuant to which the Common Stock would be converted into cash, securities or other assets, all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the effective date of the transaction until the earlier of (x) 35 Trading Days after the effective date of such transaction or, if such transaction also constitutes a Fundamental Change, until the close of business on the Business Day immediately preceding the related Fundamental Change Repurchase Date and (y) the second Scheduled Trading Day immediately preceding the Maturity Date. The Company shall notify in writing Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the effective date of such transaction. Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether a Fundamental Change or a Make-Whole Fundamental Change has occurred.
(iii) Prior to the close of business on the Business Day immediately preceding August 15, 2029, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar quarter commencing after the calendar quarter ending on March 31, 2025 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day. The Company shall determine at the beginning of each calendar quarter commencing after March 31, 2025 whether the Notes may be surrendered for conversion in accordance with this clause (iv) and shall provide written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) if the Notes become convertible in accordance with this clause (iv). Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether the condition set forth in this clause (iv) has been met.
(iv) If the Company calls any or all of the Notes for redemption pursuant to Article 16 prior to the close of business on the Business Day immediately preceding August 15, 2029, then a Holder may surrender all or any part of such of its Notes as called for redemption for conversion at any time prior to the close of business on the second Scheduled Trading Day prior to the Redemption Date, even if the Notes are not otherwise convertible at such time. After that time, the right to convert such Notes pursuant to this Section 14.01(b)(v) shall expire, unless the Company defaults in the payment of the Redemption Price, in which case a Holder of Notes may convert its Notes until the Redemption Price has been paid or duly provided for.
Appears in 1 contract
Conversion Privilege. (a) Subject to and upon compliance with the provisions of this Article Article 14, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section Section 14.01(b), at any time prior to the close of business on the Business Day immediately preceding August December 15, 2029 2030 under the circumstances and during the periods set forth in Section Section 14.01(b), and (ii) regardless of the conditions described in Section Section 14.01(b), on or after August December 15, 2029 2030 and prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 62.3539 258.3312 shares of Common Stock (subject to adjustment as provided in this Article Article 14, the “Conversion Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section Section 14.02, the “Conversion Obligation”).
(ab) (i) Prior to the close of business on the Business Day immediately preceding August December 15, 20292030, a Holder may surrender all or any portion of its Notes for conversion at any time during the five Business Day period immediately after any five ten consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this subsection (b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on each such Trading Day and the Conversion Rate on each such Trading Day. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this subsection (b)(i) and the definition of Trading Price set forth in this Indenture. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes unless the Company has requested such determination, and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes) unless a Holder or Holders of at least $1,000,000 aggregate 3,000,000 in principal amount of Notes requests in writing that the Company make such a determination and provides the Company with a written request and reasonable evidence that the Trading Price per $1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the Conversion Rate on such Trading Day, at which time the Company shall instruct three nationally recognized securities dealers to deliver bids and instruct the Bid Solicitation Agent (if other than the Company) to determine, or if the Company is acting as Bid Solicitation Agent, the Company shall determine, the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not instruct the Bid Solicitation Agent to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentence, or if the Company instructs the Bid Solicitation Agent to obtain bids and the Bid Solicitation Agent fails to make such determination, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, then, in either case, the Trading Price per $1,000 principal amount of Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company shall so notify in writing the Holders, the Trustee and the Conversion Agent (if other than the Trustee). Any such determination shall be conclusive absent manifest error. If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate for such date, the Company shall so notify in writing the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee).
(i) If, prior to the close of business on the Business Day immediately preceding August 15, 2029, the Company elects to:
(A) issue to all or substantially all holders of the Common Stock any rights, options or warrants (other than in connection with a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock) entitling them, for a period of not more than 45 calendar days after the announcement date of such issuance, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, Holders of Notes shall cease to be entitled to surrender Notes for conversion pursuant to this Section 14.01(b)(i) unless and until the Trading Day immediately preceding Price condition is satisfied again. The Company may replace the date of announcement of such issuance; or
(B) distribute Bid Solicitation Agent with any Person by written notice to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase securities of the Company (other than pursuant to a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock), which distribution has a per share value, as reasonably determined by the Board of Directors, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution, then, in either case, the Company shall notify in writing all Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) at least 30 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan, no later than the Business Day after the Company becomes aware that such separation has occurred or will occur); provided, however, that if the Company elects Physical Settlement (to the extent that the Company has not elected another Settlement Method to apply, including pursuant to Section 14.02) in the applicable notice in respect of any conversions that occurs from, and including, the date the Company provides such notice to, and including, the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or issuance (or, if earlier, the date the Company announces that such issuance or distribution will not take place) (the “Distribution Trigger Irrevocable Physical Settlement Period”), the Company shall be permitted to provide no less than 10 Scheduled Trading Days’ notice prior to the Ex-Dividend Date for the applicable issuance or distribution, in which case the Company shall be required to settle all conversions of Notes with a Conversion Date occurring during the Distribution Trigger Irrevocable Physical Settlement Period by Physical Settlement, and the Company shall describe the same in such notice. Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at any time until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take place, in each case, even if the Notes are not otherwise convertible at such time. Notwithstanding the foregoing, Holders may not convert their Notes under this Section 14.01(b)(ii) if they participate (other than in the case of a share split or share combination) at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described under this Section 14.01(b)(ii)(A) or (B) without having to convert their Notes as if they held a number of shares of Common Stock equal to the then-effective Conversion Rate multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. Neither the Trustee not the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether an issuance or distribution described in this clause (ii) has occurredHolders.
(ii) If a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section 15.02, or if the Company is a party to a Share Exchange Event (other than a Share Exchange Event that is solely for the purpose of changing the Company’s jurisdiction of organization that does not constitute a Fundamental Change or Make-Whole Fundamental Change) that occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, in each case, pursuant to which the Common Stock would be converted into cash, securities or other assets, all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the effective date of the transaction until the earlier of (x) 35 Trading Days after the effective date of such transaction or, if such transaction also constitutes a Fundamental Change, until the close of business on the Business Day immediately preceding the related Fundamental Change Repurchase Date and (y) the second Scheduled Trading Day immediately preceding the Maturity Date. The Company shall notify in writing Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the effective date of such transaction. Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether a Fundamental Change or a Make-Whole Fundamental Change has occurred.
(iii) Prior to the close of business on the Business Day immediately preceding August 15, 2029, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar quarter commencing after the calendar quarter ending on March 31, 2025 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day. The Company shall determine at the beginning of each calendar quarter commencing after March 31, 2025 whether the Notes may be surrendered for conversion in accordance with this clause (iv) and shall provide written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) if the Notes become convertible in accordance with this clause (iv). Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether the condition set forth in this clause (iv) has been met.
(iv) If the Company calls any or all of the Notes for redemption pursuant to Article 16 prior to the close of business on the Business Day immediately preceding August 15, 2029, then a Holder may surrender all or any part of such of its Notes as called for redemption for conversion at any time prior to the close of business on the second Scheduled Trading Day prior to the Redemption Date, even if the Notes are not otherwise convertible at such time. After that time, the right to convert such Notes pursuant to this Section 14.01(b)(v) shall expire, unless the Company defaults in the payment of the Redemption Price, in which case a Holder of Notes may convert its Notes until the Redemption Price has been paid or duly provided for.
Appears in 1 contract
Conversion Privilege. (a) Subject to and upon compliance with the provisions of this Article 14, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the Business Day immediately preceding August November 15, 2029 2026 under the circumstances and during the periods set forth in Section 14.01(b), and (ii) regardless of the conditions described in Section 14.01(b), on or after August November 15, 2029 2026 and prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 62.3539 30.8804 shares of Common Stock (subject to adjustment as provided in this Article 14, the “Conversion Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.02, the “Conversion Obligation”).
(ab) (i) Prior to the close of business on the Business Day immediately preceding August November 15, 20292026, a Holder may surrender all or any portion of its Notes for conversion at any time during the five Business Day period immediately after any five ten consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this subsection (b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on each such Trading Day and the Conversion Rate on each such Trading Day. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this subsection (b)(i) and the definition of Trading Price set forth in this Indenture. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes unless the Company has requested such determination, and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes) unless a Holder of at least $1,000,000 2,000,000 aggregate principal amount of Notes requests in writing that the Company make such a determination and provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the Conversion Rate on such Trading Day, at which time the Company shall instruct three nationally recognized securities dealers to deliver bids and instruct the Bid Solicitation Agent (if other than the Company) to determine, or if the Company is acting as Bid Solicitation Agent, the Company shall determine, the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not not, when the Company is required to, instruct the Bid Solicitation Agent to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentence, or if the Company instructs the Bid Solicitation Agent to obtain bids and the Bid Solicitation Agent fails to make such determination, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, then, in either case, the Trading Price per $1,000 principal amount of Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company shall so notify in writing the Holders, the Trustee and the Conversion Agent (if other than the Trustee)) in writing. Any such determination shall be conclusive absent manifest error. If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate for such date, the Company shall so notify in writing the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee).
(i) If, prior to the close of business on the Business Day immediately preceding August 15, 2029, in writing and thereafter neither the Company elects to:
(A) issue to all or substantially all holders of nor the Common Stock any rights, options or warrants (other than in connection with a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock) entitling them, for a period of not more than 45 calendar days after the announcement date of such issuance, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance; or
(B) distribute to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase securities of the Company (other than pursuant to a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock), which distribution has a per share value, as reasonably determined by the Board of Directors, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution, then, in either case, the Company shall notify in writing all Holders of the Notes, the Trustee and the Conversion Bid Solicitation Agent (if other than the TrusteeCompany) at least 30 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan, no later than the Business Day after the Company becomes aware that such separation has occurred or will occur); provided, however, that if the Company elects Physical Settlement (to the extent that the Company has not elected another Settlement Method to apply, including pursuant to Section 14.02) in the applicable notice in respect of any conversions that occurs from, and including, the date the Company provides such notice to, and including, the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or issuance (or, if earlier, the date the Company announces that such issuance or distribution will not take place) (the “Distribution Trigger Irrevocable Physical Settlement Period”), the Company shall be permitted to provide no less than 10 Scheduled Trading Days’ notice prior to the Ex-Dividend Date for the applicable issuance or distribution, in which case the Company shall be required to settle all conversions of Notes with a Conversion Date occurring during solicit bids (or determine the Distribution Trigger Irrevocable Physical Settlement Period by Physical Settlement, and the Company shall describe the same in such notice. Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at any time until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take place, in each case, even if the Notes are not otherwise convertible at such time. Notwithstanding the foregoing, Holders may not convert their Notes under this Section 14.01(b)(ii) if they participate (other than in the case of a share split or share combination) at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described under this Section 14.01(b)(ii)(A) or (B) without having to convert their Notes as if they held a number of shares of Common Stock equal to the then-effective Conversion Rate multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. Neither the Trustee not the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether an issuance or distribution described in this clause (ii) has occurred.
(ii) If a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section 15.02, or if the Company is a party to a Share Exchange Event (other than a Share Exchange Event that is solely for the purpose of changing the Company’s jurisdiction of organization that does not constitute a Fundamental Change or Make-Whole Fundamental Change) that occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, in each case, pursuant to which the Common Stock would be converted into cash, securities or other assets, all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the effective date of the transaction until the earlier of (x) 35 Trading Days after the effective date of such transaction or, if such transaction also constitutes a Fundamental Change, until the close of business on the Business Day immediately preceding the related Fundamental Change Repurchase Date and (y) the second Scheduled Trading Day immediately preceding the Maturity Date. The Company shall notify in writing Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the effective date of such transaction. Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether a Fundamental Change or a Make-Whole Fundamental Change has occurred.
(iii) Prior to the close of business on the Business Day immediately preceding August 15, 2029, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar quarter commencing after the calendar quarter ending on March 31, 2025 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day. The Company shall determine at the beginning of each calendar quarter commencing after March 31, 2025 whether the Notes may be surrendered for conversion in accordance with this clause (iv) and shall provide written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) if the Notes become convertible in accordance with this clause (iv). Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether the condition as set forth in this clause Indenture) again unless a new Holder request is made as provided in this subsection (iv) has been metb)(i).
(iv) If the Company calls any or all of the Notes for redemption pursuant to Article 16 prior to the close of business on the Business Day immediately preceding August 15, 2029, then a Holder may surrender all or any part of such of its Notes as called for redemption for conversion at any time prior to the close of business on the second Scheduled Trading Day prior to the Redemption Date, even if the Notes are not otherwise convertible at such time. After that time, the right to convert such Notes pursuant to this Section 14.01(b)(v) shall expire, unless the Company defaults in the payment of the Redemption Price, in which case a Holder of Notes may convert its Notes until the Redemption Price has been paid or duly provided for.
Appears in 1 contract
Conversion Privilege. (a) Subject to and upon compliance with the provisions of this Article 14, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the Business Day immediately preceding August 15June 1, 2029 2022 under the circumstances and during the periods set forth in Section 14.01(b), and (ii) regardless of the conditions described in Section 14.01(b), on or after August 15at any time during the period from, 2029 and prior including, June 1, 2022 to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 62.3539 25.8249 shares of Common Stock (subject to adjustment as provided in this Article 14, the “Conversion Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.02, the “Conversion Obligation”).
(ab) (i) Prior to the close of business on the Business Day immediately preceding August 15June 1, 20292022, a Holder may surrender all or any portion of its Notes for conversion at any time during the five Business Day period immediately after any five ten consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this subsection (b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on each such Trading Day and the Conversion Rate on each such Trading Day. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this subsection (b)(i) and the definition of Trading Price set forth in this Indenture. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes unless the Company has requested such determination, and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes) unless a Holder of at least $1,000,000 2,000,000 aggregate principal amount of Notes requests in writing that the Company make such a determination and provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the Conversion Rate on such Trading Day, at which time the Company shall instruct three nationally recognized securities dealers to deliver bids and instruct the Bid Solicitation Agent (if other than the Company) to determine, or if the Company is acting as Bid Solicitation Agent, the Company shall determine, the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not not, when required to, instruct the Bid Solicitation Agent to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentence, or if the Company instructs the Bid Solicitation Agent to obtain bids and the Bid Solicitation Agent fails to make such determination, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, then, in either case, the Trading Price per $1,000 principal amount of Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company shall so notify in writing the Holders, the Trustee and the Conversion Agent (if other than the Trustee). If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate for such date, the Company shall so notify in writing the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee).
(i) If, prior to the close of business on the Business Day immediately preceding August 15, 2029, the Company elects to:
(A) issue to all or substantially all holders of the Common Stock any rights, options or warrants (other than in connection with a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock) entitling them, for a period of not more than 45 calendar days after the announcement date of such issuance, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance; or
(B) distribute to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase securities of the Company (other than pursuant to a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock), which distribution has a per share value, as reasonably determined by the Board of Directors, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution, then, in either case, the Company shall notify in writing all Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) at least 30 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan, no later than the Business Day after the Company becomes aware that such separation has occurred or will occur); provided, however, that if the Company elects Physical Settlement (to the extent that the Company has not elected another Settlement Method to apply, including pursuant to Section 14.02) in the applicable notice in respect of any conversions that occurs from, and including, the date the Company provides such notice to, and including, the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or issuance (or, if earlier, the date the Company announces that such issuance or distribution will not take place) (the “Distribution Trigger Irrevocable Physical Settlement Period”), the Company shall be permitted to provide no less than 10 Scheduled Trading Days’ notice prior to the Ex-Dividend Date for the applicable issuance or distribution, in which case the Company shall be required to settle all conversions of Notes with a Conversion Date occurring during the Distribution Trigger Irrevocable Physical Settlement Period by Physical Settlement, and the Company shall describe the same in such notice. Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at any time until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take place, in each case, even if the Notes are not otherwise convertible at such time. Notwithstanding the foregoing, Holders may not convert their Notes under this Section 14.01(b)(ii) if they participate (other than in the case of a share split or share combination) at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described under this Section 14.01(b)(ii)(A) or (B) without having to convert their Notes as if they held a number of shares of Common Stock equal to the then-effective Conversion Rate multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. Neither the Trustee not the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether an issuance or distribution described in this clause (ii) has occurred.
(ii) If a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section 15.02, or if the Company is a party to a Share Exchange Event (other than a Share Exchange Event that is solely for the purpose of changing the Company’s jurisdiction of organization that does not constitute a Fundamental Change or Make-Whole Fundamental Change) that occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, in each case, pursuant to which the Common Stock would be converted into cash, securities or other assets, all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the effective date of the transaction until the earlier of (x) 35 Trading Days after the effective date of such transaction or, if such transaction also constitutes a Fundamental Change, until the close of business on the Business Day immediately preceding the related Fundamental Change Repurchase Date and (y) the second Scheduled Trading Day immediately preceding the Maturity Date. The Company shall notify in writing Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the effective date of such transaction. Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether a Fundamental Change or a Make-Whole Fundamental Change has occurred.
(iii) Prior to the close of business on the Business Day immediately preceding August 15, 2029, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar quarter commencing after the calendar quarter ending on March 31, 2025 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day. The Company shall determine at the beginning of each calendar quarter commencing after March 31, 2025 whether the Notes may be surrendered for conversion in accordance with this clause (iv) and shall provide written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) if the Notes become convertible in accordance with this clause (iv). Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether the condition set forth in this clause (iv) has been met.
(iv) If the Company calls any or all of the Notes for redemption pursuant to Article 16 prior to the close of business on the Business Day immediately preceding August 15, 2029, then a Holder may surrender all or any part of such of its Notes as called for redemption for conversion at any time prior to the close of business on the second Scheduled Trading Day prior to the Redemption Date, even if the Notes are not otherwise convertible at such time. After that time, the right to convert such Notes pursuant to this Section 14.01(b)(v) shall expire, unless the Company defaults in the payment of the Redemption Price, in which case a Holder of Notes may convert its Notes until the Redemption Price has been paid or duly provided for.
Appears in 1 contract
Sources: Indenture (Broadsoft, Inc.)
Conversion Privilege. (a) Subject to and upon compliance with the provisions of this Article Article 14, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral a multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section Section 14.01(b), at any time prior to the close of business on the Business Day immediately preceding August 15February 1, 2029 2027 under the circumstances and during the periods set forth in Section Section 14.01(b), and (ii) regardless of the conditions described in Section Section 14.01(b), on or after August 15February 1, 2029 2027 and prior to the close of business on the second Scheduled Trading Business Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 62.3539 25.7785 shares of Common Stock (subject to adjustment as provided in this Article Article 14, the “Conversion Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section Section 14.02, the “Conversion Obligation”).
(ab) (i) Prior to the close of business on the Business Day immediately preceding August 15February 1, 20292027, a Holder may surrender all or any portion of its Notes for conversion at any time during the five Business Day period immediately after any five consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a written request by a Holder of Notes in accordance with this subsection (b)(iSection 14.01(b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on each such Trading Day and the Conversion Rate on each such Trading Day. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this subsection (b)(iSection 14.01(b)(i) and the definition of Trading Price set forth in this Indenture. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes unless the Company has requested such determinationdetermination in writing, and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes) unless a Holder of at least $1,000,000 2,000,000 aggregate principal amount of Notes requests in writing that the Company make such a determination and provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the Conversion Rate on such Trading DayRate, at which time the Company shall instruct three nationally recognized securities dealers to deliver bids and instruct the Bid Solicitation Agent in writing (if other than the Company) to determine, or if the Company is acting as Bid Solicitation Agent, the Company shall determine, determine the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate. At such time as the Company directs the Bid Solicitation Agent in writing to solicit bid quotations, the Company shall provide the Bid Solicitation Agent with the names and contact details of the three independent nationally recognized securities dealers selected by the Company, and the Company shall direct those security dealers to provide bids to the Bid Solicitation Agent. Any such determination will be conclusive absent manifest error. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not not, when the Company is required to, instruct the Bid Solicitation Agent to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentenceobtain bids, or if the Company so instructs the Bid Solicitation Agent to obtain bids and the Bid Solicitation Agent fails to make such determination, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, determination. then, in either case, the Trading Price per $1,000 principal amount of Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company shall so notify in writing the Holders, the Trustee and the Conversion Agent (if other than the Trustee)) in writing. If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate for such date, the Company shall so notify in writing the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee).
(i) If, prior to the close of business on the Business Day immediately preceding August 15, 2029, the Company elects to:
(A) issue to all or substantially all holders of the Common Stock any rights, options or warrants (other than in connection with a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock) entitling them, for a period of not more than 45 calendar days after the announcement date of such issuance, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance; or
(B) distribute to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase securities of the Company (other than pursuant to a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock), which distribution has a per share value, as reasonably determined by the Board of Directors, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution, then, in either case, the Company shall notify in writing all Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) at least 30 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan, no later than the Business Day after the Company becomes aware that such separation has occurred or will occur); provided, however, that if the Company elects Physical Settlement (to the extent that the Company has not elected another Settlement Method to apply, including pursuant to Section 14.02) in the applicable notice in respect of any conversions that occurs from, and including, the date the Company provides such notice to, and including, the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or issuance (or, if earlier, the date the Company announces that such issuance or distribution will not take place) (the “Distribution Trigger Irrevocable Physical Settlement Period”), the Company shall be permitted to provide no less than 10 Scheduled Trading Days’ notice prior to the Ex-Dividend Date for the applicable issuance or distribution, in which case the Company shall be required to settle all conversions of Notes with a Conversion Date occurring during the Distribution Trigger Irrevocable Physical Settlement Period by Physical Settlement, and the Company shall describe the same in such notice. Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at any time until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take place, in each case, even if the Notes are not otherwise convertible at such time. Notwithstanding the foregoing, Holders may not convert their Notes under this Section 14.01(b)(ii) if they participate (other than in the case of a share split or share combination) at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described under this Section 14.01(b)(ii)(A) or (B) without having to convert their Notes as if they held a number of shares of Common Stock equal to the then-effective Conversion Rate multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. Neither the Trustee not the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether an issuance or distribution described in this clause (ii) has occurred.
(ii) If a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section 15.02, or if the Company is a party to a Share Exchange Event (other than a Share Exchange Event that is solely for the purpose of changing the Company’s jurisdiction of organization that does not constitute a Fundamental Change or Make-Whole Fundamental Change) that occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, in each case, pursuant to which the Common Stock would be converted into cash, securities or other assets, all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the effective date of the transaction until the earlier of (x) 35 Trading Days after the effective date of such transaction or, if such transaction also constitutes a Fundamental Change, until the close of business on the Business Day immediately preceding the related Fundamental Change Repurchase Date and (y) the second Scheduled Trading Day immediately preceding the Maturity Date. The Company shall notify in writing Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the effective date of such transaction. Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether a Fundamental Change or a Make-Whole Fundamental Change has occurred.
(iii) Prior to the close of business on the Business Day immediately preceding August 15, 2029, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar quarter commencing after the calendar quarter ending on March 31, 2025 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day. The Company shall determine at the beginning of each calendar quarter commencing after March 31, 2025 whether the Notes may be surrendered for conversion in accordance with this clause (iv) and shall provide written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing, and thereafter neither the Company nor the Bid Solicitation Agent (if other than the Company) shall be required to solicit bids (or determine the Trading Price of the Notes become convertible in accordance with this clause (iv). Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether the condition as set forth in this clause (ivIndenture) has been met.
(iv) If the Company calls any or all of the Notes for redemption pursuant to Article 16 prior to the close of business on the Business Day immediately preceding August 15, 2029, then again until a new Holder may surrender all or any part of such of its Notes as called for redemption for conversion at any time prior to the close of business on the second Scheduled Trading Day prior to the Redemption Date, even if the Notes are not otherwise convertible at such time. After that time, the right to convert such Notes request is made pursuant to this Section 14.01(b)(v) shall expire, unless the Company defaults in the payment of the Redemption Price, in which case a Holder of Notes may convert its Notes until the Redemption Price has been paid or duly provided forSection 14.01(b)(i).
Appears in 1 contract
Sources: Indenture (Natera, Inc.)
Conversion Privilege. 62
(a) Subject Holders may not convert the Notes at any time on or prior to the 40th day following the last date of original issuance of the Notes (such date, the “Compliance Period End Date”). After the Compliance Period End Date, subject to and upon compliance with the provisions of this Article 14XIV, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is $1,000 US$200,000 principal amount or an integral multiple thereofof US$200,000) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the Business Day immediately preceding August September 15, 2029 2027 under the circumstances and during the periods set forth in Section 14.01(b), and (ii) regardless of the conditions described in Section 14.01(b), on or after August September 15, 2029 2027 and prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 62.3539 shares of Common Stock 101.4636 ADSs (subject to adjustment as provided in this Article 14XIV, the “Conversion Rate”) per $US$1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.02, the “Conversion Obligation”).
(a) (i) Prior After the Compliance Period End Date and prior to the close of business on the Business Day immediately preceding August September 15, 20292027, a Holder may surrender all or any portion of its Notes for conversion at any time during the five Business Day period immediately after any five ten consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $US$1,000 principal amount of Notes, as determined following a written request by a Holder of Notes in accordance with this subsection (b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock ADSs on each such Trading Day and the Conversion Rate on each such Trading Day. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this subsection (b)(i) and the definition of Trading Price set forth in this Indenture. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $US$1,000 principal amount of Notes unless the Company has requested such determinationdetermination in writing, and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $US$1,000 principal amount of Notes) unless a Holder of at least $1,000,000 aggregate principal amount of Notes requests in writing that the Company make such a determination and provides the Company with reasonable evidence that the Trading Price per $US$1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Common Stock ADSs on such Trading Day and the Conversion Rate on such Trading Day, at which time the Company shall instruct three nationally recognized securities dealers to deliver bids and instruct the Bid Solicitation Agent (if other than the Company) in writing to determine, or if the Company is acting as Bid Solicitation Agent, the Company shall determine, the Trading Price per $US$1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $US$1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock ADSs and the Conversion Rate. At such time as the Company directs the Bid Solicitation Agent in writing to solicit bid quotations, the Company will provide the Bid Solicitation Agent with the names and contact details of the three independent nationally recognized securities dealers the Company selects, and the Company will direct those securities dealers to provide bids to the Bid Solicitation Agent. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not not, when the Company is required to, instruct the Bid Solicitation Agent to determine the Trading Price per $US$1,000 principal amount of Notes when obligated as provided in the preceding sentence, or if the Company instructs the Bid Solicitation Agent in writing to obtain bids and the Bid Solicitation Agent fails to make such determination, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, then, in either case, the Trading Price per $US$1,000 principal amount of Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock ADSs and the Conversion Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company shall so notify in writing the Holders, the Trustee and the Conversion Agent (if other than the Trustee)) in writing. If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $US$1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock ADSs and the Conversion Rate for such date, the Company shall so notify in writing the Holders of the NotesHolders, the Trustee and the Conversion Agent (if other than the Trustee)) that the Trading Price condition set forth in this Section 14.01(b)(i) is no longer met and thereafter neither the Company nor the Bid Solicitation Agent (if other than the Company) shall be required to solicit bids again until another qualifying request is made as provided above. Neither the Trustee nor any of the Agents shall have any duty to appoint or monitor the Bid Solicitation Agent.
(iii) If, prior to the close of business on the Business Day immediately preceding August September 15, 20292027, the Company elects to:
(A) A. issue to all or substantially all holders of the Common Stock Class A Ordinary Shares (directly or in the form of ADSs) any rights, options or warrants (other than in connection with a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock) entitling them, for a period of not more than 45 calendar days after the announcement date of such issuance, to subscribe for or purchase shares Class A Ordinary Shares (directly or in the form of the Common Stock ADSs) at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock ADSs, divided by the number of Class A Ordinary Shares then represented by one ADS, for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance; or
(B) B. distribute to all or substantially all holders of the Common Stock Class A Ordinary Shares (directly or in the form of ADSs) the Company’s assets, securities or rights to purchase securities of the Company (other than pursuant to a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock)Company, which distribution has a per share value, as reasonably determined by the Board of Directors, exceeding 10% of (i) the Last Reported Sale Price of the Common Stock ADSs on the Trading Day preceding the date of announcement for such distribution, divided by (ii) the number of Class A Ordinary Shares then represented by one ADS, then, in either case, the Company shall notify in writing all Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) in writing at least 30 45 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan, no later than the Business Day after the Company becomes aware that such separation has occurred or will occur); provided, however, that if the Company elects Physical Settlement (to the extent that the Company has not elected another Settlement Method to apply, including pursuant to Section 14.02) in the applicable notice in respect of any conversions that occurs from, and including, the date the Company provides such notice to, and including, the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or issuance (or, if earlier, the date the Company announces that such issuance or distribution will not take place) (the “Distribution Trigger Irrevocable Physical Settlement Period”), the Company shall be permitted to provide no less than 10 Scheduled Trading Days’ notice prior to the Ex-Dividend Date for the applicable issuance or distribution, in which case the Company shall be required to settle all conversions of Notes with a Conversion Date occurring during the Distribution Trigger Irrevocable Physical Settlement Period by Physical Settlement, and the Company shall describe the same in such notice. Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at any time from, and including, the later of (x) the date the Company provides such notice or (y) the Compliance Period End Date, until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take place, in each case, even if the Notes are not otherwise convertible at such time. Notwithstanding the foregoing, Holders may not convert their Notes under this Section 14.01(b)(ii) if they participate (other than in the case of a share split or share combination) at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described under this Section 14.01(b)(ii)(A) or (B) without having to convert their Notes as if they held a number of shares of Common Stock equal to the then-effective Conversion Rate multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. Neither the Trustee not the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether an issuance or distribution described in this clause (ii) has occurred.
(iiiii) If a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close of business on the Business Day immediately preceding August September 15, 20292027, regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section 15.02, or if the Company is a party to a Share Exchange Event (other than a Share Exchange Event that is solely for the purpose consolidation, merger, binding share exchange, or transfer or lease of changing the Company’s jurisdiction all or substantially all of organization that does not constitute a Fundamental Change or Make-Whole Fundamental Change) its assets that occurs prior to the close of business on the Business Day immediately preceding August September 15, 20292027, in each case, pursuant to which the Common Stock ADSs would be converted into cash, securities or other assets, all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the actual effective date of the such transaction until the earlier of (x) 35 Trading Days after the actual effective date of such transaction or, if such transaction also constitutes a Fundamental Change, until the close of business on the Business Day immediately preceding the related Fundamental Change Repurchase Date and (y) the second Scheduled Trading Day immediately preceding the Maturity Date. The Company shall notify in writing Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than in writing as promptly as practicable following the effective date of the Company publicly announces such transaction. Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether a Fundamental Change or a Make-Whole Fundamental Change has occurred.
(iiiiv) Prior After the Compliance Period End Date and prior to the close of business on the Business Day immediately preceding August September 15, 20292027, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar quarter commencing after the calendar quarter ending on March 31June 30, 2025 2023 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock ADSs for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day. The Company shall determine at the beginning of each calendar quarter commencing after March 31, 2025 whether the Notes may be surrendered for conversion in accordance with this clause (iv) and shall provide written notice to notify the Holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing if the Notes become convertible in accordance with this clause (iv). Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether the condition set forth in this clause (iv) has been met.
(ivv) If the Company calls any or all of the Notes for redemption pursuant to Article 16 prior to the close of business on the Business Day immediately preceding August 15, 2029XVI, then a Holder may surrender all or any part of such portion of its Called Notes as called for redemption (in principal amounts of US$200,000 or integral multiple of US$200,000 in excess thereof) for conversion at any time prior to the close of business on the second Scheduled Trading Business Day prior to the Tax Redemption Date, as applicable, or the Optional Redemption, even if the Notes are not otherwise convertible at such time. After that time, the right to convert such Called Notes on account of the Company’s delivery of a Tax Redemption Notice or Optional Redemption Notice shall expire under this clause (v), unless the Company defaults in the payment of the related Redemption Price, in which case a Holder may convert all or any portion of its Called Notes (in principal amounts of US$200,000 or integral multiple of US$200,000 in excess thereof) until the Redemption Price has been paid or duly provided for. If a Holder of any Note (or any owner of a beneficial interest in any Global Note) is reasonably not able to determine, before the close of business on the 42nd Scheduled trading Day immediately before the relevant Redemption Date, whether such Note or beneficial interest, as applicable, is to be redeemed pursuant to this Section 14.01(b)(v) shall expiresuch redemption, then such Holder or owner, as applicable, will be entitled to convert such Note or beneficial interest, as applicable, at any time before the close of business on the second Business Day immediately prior to such Redemption Date, as applicable, unless the Company defaults in the payment of the related Redemption Price, in which case such Holder or owner, as applicable, will be entitled to convert such Note or beneficial interest, as applicable, until the Redemption Price has been paid or duly provided for, and in each case each such conversion will be deemed to be of a note called for redemption (a “Deemed Redemption”). If a Holder elects to convert Called Notes from, and including, the date of issuance of a the Tax Redemption Notice or Optional Redemption Notice, as the case may be, with respect to such Called Notes until the close of business on the second Business Day immediately preceding the relevant Redemption Date (or, if the Company defaults in the payment of the Redemption Price, in which case a Holder of Notes may convert its Notes until the Redemption Price has been paid or duly provided for) (any such period, a “Redemption Period”), the Company will, under certain circumstances, increase the Conversion Rate for such Called Notes as described under Section 14.03. Accordingly, if the Company elects to redeem fewer than all of the outstanding Notes as described under Section 16.02, Holders of the Notes that are not Called Notes will not be entitled to convert such Notes on account of the relevant Redemption Notice and will not be entitled to an increased Conversion Rate on account of the relevant Redemption Notice for conversions of such Notes during the related Redemption Period if such Notes are otherwise convertible.
Appears in 1 contract
Sources: Indenture (iQIYI, Inc.)
Conversion Privilege. (a) Subject to and upon compliance with the provisions of this Article Article 14, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral a multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section Section 14.01(b), at any time prior to the close of business on the Business Day immediately preceding August 15, 2029 2025 under the circumstances and during the periods set forth in Section Section 14.01(b), and (ii) regardless of the conditions described in Section Section 14.01(b), on or after August 15, 2029 2025 and prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 62.3539 30.2151 shares of Common Stock (subject to adjustment as provided in this Article Article 14, the “Conversion Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section Section 14.02, the “Conversion Obligation”).
(ab) (i) Prior to the close of business on the Business Day immediately preceding August 15, 20292025, a Holder may surrender all or any portion of its Notes for conversion at any time during the five Business Day period immediately after any five consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this subsection (b)(iSection 14.01(b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on each such Trading Day and the Conversion Rate on each such Trading DayDay (the “Trading Price Condition”). The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this subsection (b)(iSection 14.01(b)(i) and the definition of Trading Price set forth in this Indenture. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes solicit bids as described above unless the Company has requested such determinationsolicitation in writing, and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000 principal amount of Notessolicit such bids) unless a Holder of at least $1,000,000 2,000,000 aggregate principal amount of Notes requests in writing that the Company make such a determination and provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the Conversion Rate on such Trading DayRate, at which time the Company shall instruct three nationally recognized securities dealers to deliver bids and instruct the Bid Solicitation Agent in writing (if other than the Company) to determinesolicit, or if the Company is acting as Bid Solicitation Agent, the Company shall determine, the Trading Price per $1,000 principal amount of Notes solicit such bids beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion RateRate and the Company shall instruct the three independent nationally recognized securities dealers to deliver bids to the Bid Solicitation Agent. The Company shall determine the Trading Price per $1,000 principal amount of the Notes for each Trading Day in accordance with the bids so solicited. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not not, when the Company is required to, instruct the Bid Solicitation Agent in writing to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentenceobtain bids, or if the Company so instructs the Bid Solicitation Agent in writing to obtain bids and the Bid Solicitation Agent fails to make obtain such determinationbids, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make obtain such determination when obligated as provided in the preceding sentencebids, then, in either case, the Trading Price per $1,000 principal amount of Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate on each Trading Day of such failure. At such time as the Company directs the Bid Solicitation Agent (if other than the Company) in writing to solicit bid quotations, the Company shall provide the Bid Solicitation Agent (if other than the Company) with the names and contact details of the three independent nationally recognized securities dealers selected by the Company and the Company shall direct these securities dealers to provide bids to the Bid Solicitation Agent. If the Trading Price condition set forth above has been met, the Company shall so notify in writing the Holders, the Trustee and the Conversion Agent (if other than the Trustee)) in writing on or within one Business Day of such determination. If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate for such dateTrading Day, the Company shall so notify in writing the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee).
(i) If, prior to the close of business on the Business Day immediately preceding August 15, 2029, the Company elects to:
(A) issue to all or substantially all holders of the Common Stock any rights, options or warrants (other than in connection with a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock) entitling them, for a period of not more than 45 calendar days after the announcement date of such issuance, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance; or
(B) distribute to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase securities of the Company (other than pursuant to a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock), which distribution has a per share value, as reasonably determined by the Board of Directors, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution, then, in either case, the Company shall notify in writing all Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) at least 30 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan, no later than the Business Day after the Company becomes aware that such separation has occurred or will occur); provided, however, that if the Company elects Physical Settlement (to the extent that the Company has not elected another Settlement Method to apply, including pursuant to Section 14.02) in the applicable notice in respect of any conversions that occurs from, and including, the date the Company provides such notice to, and including, the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or issuance (or, if earlier, the date the Company announces that such issuance or distribution will not take place) (the “Distribution Trigger Irrevocable Physical Settlement Period”), the Company shall be permitted to provide no less than 10 Scheduled Trading Days’ notice prior to the Ex-Dividend Date for the applicable issuance or distribution, in which case the Company shall be required to settle all conversions of Notes with a Conversion Date occurring during the Distribution Trigger Irrevocable Physical Settlement Period by Physical Settlement, and the Company shall describe the same in such notice. Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at any time until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take place, in each case, even if the Notes are not otherwise convertible at such time. Notwithstanding the foregoing, Holders may not convert their Notes under this Section 14.01(b)(ii) if they participate (other than in the case of a share split or share combination) at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described under this Section 14.01(b)(ii)(A) or (B) without having to convert their Notes as if they held a number of shares of Common Stock equal to the then-effective Conversion Rate multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. Neither the Trustee not the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether an issuance or distribution described in this clause (ii) has occurred.
(ii) If a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section 15.02, or if the Company is a party to a Share Exchange Event (other than a Share Exchange Event that is solely for the purpose of changing the Company’s jurisdiction of organization that does not constitute a Fundamental Change or Make-Whole Fundamental Change) that occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, in each case, pursuant to which the Common Stock would be converted into cash, securities or other assets, all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the effective date of the transaction until the earlier of (x) 35 Trading Days after the effective date of such transaction or, if such transaction also constitutes a Fundamental Change, until the close of business on the Business Day immediately preceding the related Fundamental Change Repurchase Date and (y) the second Scheduled Trading Day immediately preceding the Maturity Date. The Company shall notify in writing Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the effective date of such transaction. Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether a Fundamental Change or a Make-Whole Fundamental Change has occurred.
(iii) Prior to the close of business on the Business Day immediately preceding August 15, 2029, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar quarter commencing after the calendar quarter ending on March 31, 2025 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day. The Company shall determine at the beginning of each calendar quarter commencing after March 31, 2025 whether the Notes may be surrendered for conversion in accordance with this clause (iv) and shall provide written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) if in writing that the Notes become convertible in accordance with this clause (iv). Neither Trading Price Condition is no longer met and thereafter neither the Trustee Company nor the Conversion Bid Solicitation Agent shall have any duty to determine or verify (if other than the Company’s determination of whether the condition set forth in this clause (iv) has been met.
(iv) If the Company calls any or all of the Notes for redemption pursuant to Article 16 prior to the close of business on the Business Day immediately preceding August 15, 2029, then a Holder may surrender all or any part of such of its Notes as called for redemption for conversion at any time prior to the close of business on the second Scheduled Trading Day prior to the Redemption Date, even if the Notes are not otherwise convertible at such time. After that time, the right to convert such Notes pursuant to this Section 14.01(b)(v) shall expire, unless the Company defaults in the payment of the Redemption Price, in which case a Holder of Notes may convert its Notes be required to solicit bids again until the Redemption Price has been paid or duly another qualifying request is made as provided forabove.
Appears in 1 contract
Conversion Privilege. (a) Subject to and upon compliance with the provisions of this Article 14, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the Business Day immediately preceding August 151, 2029 2022 under the circumstances and during the periods set forth in Section 14.01(b), and (ii) regardless of the conditions described in Section 14.01(b), on or after August 151, 2029 2022 and prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 62.3539 11.3785 shares of Common Stock (subject to adjustment as provided in this Article 14, the “Conversion Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.02, the “Conversion Obligation”).
(ab) (i) Prior to the close of business on the Business Day immediately preceding August 151, 20292022, a Holder may surrender all or any portion of its Notes for conversion at any time during the five Business Day period immediately after any five consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this subsection (b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on each such Trading Day and the Conversion Rate on each such Trading Day. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this subsection (b)(i) and the definition of Trading Price set forth in this Indenture. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes unless the Company has requested such determination, and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes) unless a Holder Holders of at least $1,000,000 aggregate 5,000,000 principal amount of Notes requests in writing that the Company make such a determination and provides provide the Company with a written request and reasonable evidence that the Trading Price per $1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the Conversion Rate on such Trading Day, at which time the Company shall instruct three nationally recognized securities dealers to deliver bids and instruct the Bid Solicitation Agent (if other than the Company) to determine, or if the Company is acting as Bid Solicitation Agent, the Company shall determine, the Trading Price per $1,000 principal amount of Notes (in accordance with the procedures described above) beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not instruct the Bid Solicitation Agent to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentence, or if the Company instructs the Bid Solicitation Agent to obtain bids and the Bid Solicitation Agent fails to make such determination, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, then, in either case, the Trading Price per $1,000 principal amount of Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company shall so notify in writing the Holders, the Trustee and the Conversion Agent (if other than the Trustee). If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate for such date, the Company shall so notify in writing the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee).
(i) If, prior to . The Company may replace the close of business on the Business Day immediately preceding August 15, 2029, the Company elects to:
(A) issue to all or substantially all holders of the Common Stock Bid Solicitation Agent with any rights, options or warrants Person (other than in connection with a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock) entitling them, for a period of not more than 45 calendar days after the announcement date of such issuance, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance; or
(B) distribute to all or substantially all holders of the Common Stock the Company’s assets, securities or rights ) by notice to purchase securities of the Company (other than pursuant to a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock), which distribution has a per share value, as reasonably determined by the Board of Directors, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution, then, in either case, the Company shall notify in writing all Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) at least 30 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan, no later than the Business Day after the Company becomes aware that such separation has occurred or will occur); provided, however, that if the Company elects Physical Settlement (to the extent that the Company has not elected another Settlement Method to apply, including pursuant to Section 14.02) in the applicable notice in respect of any conversions that occurs from, and including, the date the Company provides such notice to, and including, the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or issuance (or, if earlier, the date the Company announces that such issuance or distribution will not take place) (the “Distribution Trigger Irrevocable Physical Settlement Period”), the Company shall be permitted to provide no less than 10 Scheduled Trading Days’ notice prior to the Ex-Dividend Date for the applicable issuance or distribution, in which case the Company shall be required to settle all conversions of Notes with a Conversion Date occurring during the Distribution Trigger Irrevocable Physical Settlement Period by Physical Settlement, and the Company shall describe the same in such notice. Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at any time until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take place, in each case, even if the Notes are not otherwise convertible at such time. Notwithstanding the foregoing, Holders may not convert their Notes under this Section 14.01(b)(ii) if they participate (other than in the case of a share split or share combination) at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described under this Section 14.01(b)(ii)(A) or (B) without having to convert their Notes as if they held a number of shares of Common Stock equal to the then-effective Conversion Rate multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. Neither the Trustee not the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether an issuance or distribution described in this clause (ii) has occurredHolders.
(ii) If a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section 15.02, or if the Company is a party to a Share Exchange Event (other than a Share Exchange Event that is solely for the purpose of changing the Company’s jurisdiction of organization that does not constitute a Fundamental Change or Make-Whole Fundamental Change) that occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, in each case, pursuant to which the Common Stock would be converted into cash, securities or other assets, all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the effective date of the transaction until the earlier of (x) 35 Trading Days after the effective date of such transaction or, if such transaction also constitutes a Fundamental Change, until the close of business on the Business Day immediately preceding the related Fundamental Change Repurchase Date and (y) the second Scheduled Trading Day immediately preceding the Maturity Date. The Company shall notify in writing Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the effective date of such transaction. Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether a Fundamental Change or a Make-Whole Fundamental Change has occurred.
(iii) Prior to the close of business on the Business Day immediately preceding August 15, 2029, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar quarter commencing after the calendar quarter ending on March 31, 2025 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day. The Company shall determine at the beginning of each calendar quarter commencing after March 31, 2025 whether the Notes may be surrendered for conversion in accordance with this clause (iv) and shall provide written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) if the Notes become convertible in accordance with this clause (iv). Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether the condition set forth in this clause (iv) has been met.
(iv) If the Company calls any or all of the Notes for redemption pursuant to Article 16 prior to the close of business on the Business Day immediately preceding August 15, 2029, then a Holder may surrender all or any part of such of its Notes as called for redemption for conversion at any time prior to the close of business on the second Scheduled Trading Day prior to the Redemption Date, even if the Notes are not otherwise convertible at such time. After that time, the right to convert such Notes pursuant to this Section 14.01(b)(v) shall expire, unless the Company defaults in the payment of the Redemption Price, in which case a Holder of Notes may convert its Notes until the Redemption Price has been paid or duly provided for.
Appears in 1 contract
Sources: Indenture (Patrick Industries Inc)
Conversion Privilege. (a) Subject to and upon compliance with the provisions of this Article 14, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the Business Day immediately preceding August 15September 1, 2029 2027 under the circumstances and during the periods set forth in Section 14.01(b), and (ii) regardless of the conditions described in Section 14.01(b), on or after August 15September 1, 2029 2027 and prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 62.3539 3.5104 shares of Common Stock (subject to adjustment as provided in this Article 14, the “Conversion Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.02, the “Conversion Obligation”).
(ab) (i) Prior to the close of business on the Business Day immediately preceding August 15September 1, 20292027, a Holder may surrender all or any portion of its Notes for conversion at any time during the five Business Day period immediately after any five consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this subsection (b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on each such Trading Day and the Conversion Rate on each such Trading Day. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this subsection (b)(i) and the definition of Trading Price set forth in this Indenture. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes unless the Company has requested such determination, and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes) unless a Holder of at least $1,000,000 aggregate principal amount of Notes requests in writing that the Company make such a determination and provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the Conversion Rate on such Trading Day, at which time the Company shall instruct three nationally recognized securities dealers to deliver bids and instruct the Bid Solicitation Agent (if other than the Company) to determine, or if the Company is acting as Bid Solicitation Agent, the Company shall determine, the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not instruct the Bid Solicitation Agent to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentence, or if the Company instructs the Bid Solicitation Agent to obtain bids and the Bid Solicitation Agent fails to make such determination, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, then, in either case, the Trading Price per $1,000 principal amount of Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company shall so notify in writing the Holders, the Trustee and the Conversion Agent (if other than the Trustee). If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate for such date, the Company shall so notify in writing the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee).
(i) If, prior to the close of business on the Business Day immediately preceding August 15, 2029, the Company elects to:
(A) issue to all or substantially all holders of the Common Stock any rights, options or warrants (other than in connection with a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock) entitling them, for a period of not more than 45 calendar days after the announcement date of such issuance, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance; or
(B) distribute to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase securities of the Company (other than pursuant to a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock), which distribution has a per share value, as reasonably determined by the Board of Directors, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution, then, in either case, the Company shall notify in writing all Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) at least 30 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan, no later than the Business Day after the Company becomes aware that such separation has occurred or will occur); provided, however, that if the Company elects Physical Settlement (to the extent that the Company has not elected another Settlement Method to apply, including pursuant to Section 14.02) in the applicable notice in respect of any conversions that occurs from, and including, the date the Company provides such notice to, and including, the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or issuance (or, if earlier, the date the Company announces that such issuance or distribution will not take place) (the “Distribution Trigger Irrevocable Physical Settlement Period”), the Company shall be permitted to provide no less than 10 Scheduled Trading Days’ notice prior to the Ex-Dividend Date for the applicable issuance or distribution, in which case the Company shall be required to settle all conversions of Notes with a Conversion Date occurring during the Distribution Trigger Irrevocable Physical Settlement Period by Physical Settlement, and the Company shall describe the same in such notice. Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at any time until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take place, in each case, even if the Notes are not otherwise convertible at such time. Notwithstanding the foregoing, Holders may not convert their Notes under this Section 14.01(b)(ii) if they participate (other than in the case of a share split or share combination) at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described under this Section 14.01(b)(ii)(A) or (B) without having to convert their Notes as if they held a number of shares of Common Stock equal to the then-effective Conversion Rate multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. Neither the Trustee not the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether an issuance or distribution described in this clause (ii) has occurred.
(ii) If a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section 15.02, or if the Company is a party to a Share Exchange Event (other than a Share Exchange Event that is solely for the purpose of changing the Company’s jurisdiction of organization that does not constitute a Fundamental Change or Make-Whole Fundamental Change) that occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, in each case, pursuant to which the Common Stock would be converted into cash, securities or other assets, all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the effective date of the transaction until the earlier of (x) 35 Trading Days after the effective date of such transaction or, if such transaction also constitutes a Fundamental Change, until the close of business on the Business Day immediately preceding the related Fundamental Change Repurchase Date and (y) the second Scheduled Trading Day immediately preceding the Maturity Date. The Company shall notify in writing Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the effective date of such transaction. Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether a Fundamental Change or a Make-Whole Fundamental Change has occurred.
(iii) Prior to the close of business on the Business Day immediately preceding August 15, 2029, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar quarter commencing after the calendar quarter ending on March 31, 2025 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day. The Company shall determine at the beginning of each calendar quarter commencing after March 31, 2025 whether the Notes may be surrendered for conversion in accordance with this clause (iv) and shall provide written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) if the Notes become convertible in accordance with this clause (iv). Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether the condition set forth in this clause (iv) has been met.
(iv) If the Company calls any or all of the Notes for redemption pursuant to Article 16 prior to the close of business on the Business Day immediately preceding August 15, 2029, then a Holder may surrender all or any part of such of its Notes as called for redemption for conversion at any time prior to the close of business on the second Scheduled Trading Day prior to the Redemption Date, even if the Notes are not otherwise convertible at such time. After that time, the right to convert such Notes pursuant to this Section 14.01(b)(v) shall expire, unless the Company defaults in the payment of the Redemption Price, in which case a Holder of Notes may convert its Notes until the Redemption Price has been paid or duly provided for.
Appears in 1 contract
Sources: Indenture (Enphase Energy, Inc.)
Conversion Privilege. (a) Subject to and upon compliance with the provisions of this Article 1413, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b13.01(b), at any time prior to the close of business on the Business Day immediately preceding August March 15, 2029 2028 under the circumstances and during the periods set forth in Section 14.01(b13.01(b), and (ii) regardless of the conditions described in Section 14.01(b13.01(b), on or after August March 15, 2029 2028 and prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 62.3539 26.0247 shares of Common Stock (subject to adjustment as provided in this Article 1413, the “Conversion Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.0213.02, the “Conversion Obligation”).
(ab) (i) Prior to the close of business on the Business Day immediately preceding August March 15, 20292028, a Holder may surrender all or any portion of its Notes for conversion at any time during the five Business Day period immediately after any five ten consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this subsection (b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Closing Price of the Common Stock on each such Trading Day and the Conversion Rate on each such Trading Day. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this subsection (b)(i) and the definition of Trading Price set forth in this Indenture. The Unless the Company is acting as Bid Solicitation Agent, the Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company (which may include one or more of the Initial Purchasers or their Affiliates) pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than not the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes unless the Company has requested such determination, and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes) unless a Holder of at least $1,000,000 2.0 million in aggregate principal amount of the Notes requests in writing that the Company make such a determination and provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Closing Price of the Common Stock on such Trading Day and the Conversion Rate on such Trading DayRate, at which time the Company shall instruct three nationally recognized securities dealers to deliver bids and instruct the Bid Solicitation Agent (if other than the Company) to determine, or if the Company is acting as Bid Solicitation Agent, ) or the Company shall determineinstruct the Bid Solicitation Agent (if the Company is not acting as Bid Solicitation Agent), in writing, to determine the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Closing Price of the Common Stock and the Conversion Rate. If (x) Rate and the Company is not acting as will instruct the three independent nationally recognized securities dealers to deliver bids to the Bid Solicitation Agent, and . If the Company does not instruct the Bid Solicitation Agent in writing to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentence, or if the Company instructs the Bid Solicitation Agent in writing to obtain bids and the Bid Solicitation Agent fails to make such determination, or (y) if the Company is acting as Bid Solicitation Agent and the Company fails to make such determination determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentenceCompany is required to do so, then, in either each case, the Trading Price per $1,000 principal amount of Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Closing Price of the Common Stock and the Conversion Rate on each Trading Day of such failure. In the event that the Company is not acting as Bid Solicitation Agent and the Bid Solicitation Agent is required to determine the Trading Price, but cannot, in its own determination, act in such capacity, the Bid Solicitation Agent shall notify the Company and the Company shall promptly appoint a substitute Bid Solicitation Agent. If the Trading Price condition set forth above has been met, the Company shall so notify in writing the Holders, the Trustee and the Conversion Agent (if other than the Trustee)) in writing. If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Closing Price of the Common Stock and the Conversion Rate for such date, the Company shall so notify in writing the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee).
(i) If, prior to the close of business on the Business Day immediately preceding August 15, 2029, the Company elects to:
(A) issue to all or substantially all holders of the Common Stock any rights, options or warrants (other than in connection with a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock) entitling them, for a period of not more than 45 calendar days after the announcement date of such issuance, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance; or
(B) distribute to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase securities of the Company (other than pursuant to a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock), which distribution has a per share value, as reasonably determined by the Board of Directors, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution, then, in either case, the Company shall notify in writing all Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) at least 30 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution (or, if later described in the case of any such separation of rights issued pursuant to a stockholder rights plan, no later than the Business Day after the Company becomes aware that such separation has occurred or will occur); provided, however, that if the Company elects Physical Settlement (to the extent that the Company has not elected another Settlement Method to apply, including pursuant to Section 14.02) in the applicable notice in respect of any conversions that occurs from, and including, the date the Company provides such notice to, and including, the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or issuance (or, if earlier, the date the Company announces that such issuance or distribution will not take place) (the “Distribution Trigger Irrevocable Physical Settlement Period”), the Company shall be permitted to provide no less than 10 Scheduled Trading Days’ notice prior to the Ex-Dividend Date for the applicable issuance or distribution, in which case the Company shall be required to settle all conversions of Notes with a Conversion Date occurring during the Distribution Trigger Irrevocable Physical Settlement Period by Physical Settlement, and the Company shall describe the same in such notice. Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at any time until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take place, in each case, even if the Notes are not otherwise convertible at such time. Notwithstanding the foregoing, Holders may not convert their Notes under this Section 14.01(b)(ii) if they participate (other than in the case of a share split or share combination) at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described under this Section 14.01(b)(ii)(A) or (B) without having to convert their Notes as if they held a number of shares of Common Stock equal to the then-effective Conversion Rate multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. Neither the Trustee not the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether an issuance or distribution described in this clause (ii) has occurredsentence.
(ii) If a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section 15.02, or if the Company is a party to a Share Exchange Event (other than a Share Exchange Event that is solely for the purpose of changing the Company’s jurisdiction of organization that does not constitute a Fundamental Change or Make-Whole Fundamental Change) that occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, in each case, pursuant to which the Common Stock would be converted into cash, securities or other assets, all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the effective date of the transaction until the earlier of (x) 35 Trading Days after the effective date of such transaction or, if such transaction also constitutes a Fundamental Change, until the close of business on the Business Day immediately preceding the related Fundamental Change Repurchase Date and (y) the second Scheduled Trading Day immediately preceding the Maturity Date. The Company shall notify in writing Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the effective date of such transaction. Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether a Fundamental Change or a Make-Whole Fundamental Change has occurred.
(iii) Prior to the close of business on the Business Day immediately preceding August 15, 2029, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar quarter commencing after the calendar quarter ending on March 31, 2025 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day. The Company shall determine at the beginning of each calendar quarter commencing after March 31, 2025 whether the Notes may be surrendered for conversion in accordance with this clause (iv) and shall provide written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) if the Notes become convertible in accordance with this clause (iv). Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether the condition set forth in this clause (iv) has been met.
(iv) If the Company calls any or all of the Notes for redemption pursuant to Article 16 prior to the close of business on the Business Day immediately preceding August 15, 2029, then a Holder may surrender all or any part of such of its Notes as called for redemption for conversion at any time prior to the close of business on the second Scheduled Trading Day prior to the Redemption Date, even if the Notes are not otherwise convertible at such time. After that time, the right to convert such Notes pursuant to this Section 14.01(b)(v) shall expire, unless the Company defaults in the payment of the Redemption Price, in which case a Holder of Notes may convert its Notes until the Redemption Price has been paid or duly provided for.
Appears in 1 contract
Conversion Privilege. (a) Subject to and upon compliance with the provisions of this Article 14, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the Business Day immediately preceding August 15November 1, 2029 under the circumstances and during the periods set forth in Section 14.01(b), and (ii) regardless of the conditions described in Section 14.01(b), on or after August 15November 1, 2029 and prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 62.3539 8.5745 shares of Common Stock (subject to adjustment as provided in this Article 14, the “Conversion Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.02, the “Conversion Obligation”).
(a) (i) Prior to the close of business on the Business Day immediately preceding August 15November 1, 2029, a Holder may surrender all or any portion of its Notes for conversion at any time during the five Business Day period immediately after any five ten consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this subsection (b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on each such Trading Day and the Conversion Rate on each such Trading Day. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this subsection (b)(i) and the definition of Trading Price set forth in this Indenture. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes unless the Company has requested such determination, and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes) unless a Holder or Holders of at least $1,000,000 aggregate 2,000,000 principal amount of Notes requests in writing that the Company make such a determination and provides aggregate provide(s) the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the Conversion Rate on such Trading Day, at which time the Company shall instruct three nationally recognized securities dealers to deliver bids and instruct the Bid Solicitation Agent (if other than the Company) to determine, or if the Company is acting as Bid Solicitation Agent, the Company shall determine, the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not not, when the Company is required to, instruct the Bid Solicitation Agent to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentence, or if the Company instructs gives such instruction to the Bid Solicitation Agent to obtain bids and the Bid Solicitation Agent fails to make such determination, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, then, in either case, the Trading Price per $1,000 principal amount of Notes on any date shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company shall so notify in writing the Holders, the Trustee and the Conversion Agent (if other than the Trustee)) in writing. Any such determination shall be conclusive absent manifest error. If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate for such date, the Company shall so notify in writing the Holders of the NotesHolders, the Trustee and the Conversion Agent (if other than the Trustee) in writing and thereafter neither the Company nor the Bid Solicitation Agent (if other than the Company) shall be required to solicit bids (or determine the Trading Price of the Notes as set forth in this Indenture) again unless a new Holder request is made as provided in this subsection (b)(i).
(iii) If, prior to the close of business on the Business Day immediately preceding August 15November 1, 2029, the Company elects to:
(A) issue distribute to all or substantially all holders of the Common Stock any rights, options or warrants (other than in connection with a stockholder rights plan so long as prior to the separation of such rights have not separated from the shares of the Common Stock) entitling them, for a period of not more than 45 60 calendar days after the announcement date of such issuancedistribution, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuancedistribution; or
(B) distribute to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase securities of the Company (other than pursuant to in connection with a stockholder rights plan so long as prior to separation of such rights have not separated from the shares of the Common Stock), which distribution has a per share value, as reasonably determined by the Board of DirectorsCompany in good faith, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution, then, in either case, the Company shall notify in writing all Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) in writing at least 30 65 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan, no later than the Business Day as soon as reasonably practicable after the Company becomes aware that such separation or triggering event has occurred or will occur); provided, however, that if the Company elects Physical Settlement (to the extent that the Company has not elected another Settlement Method to apply, including pursuant to Section 14.02) in the applicable notice in respect of any conversions that occurs from, and including, the date the Company provides such notice to, and including, the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or issuance (or, if earlier, the date the Company announces that such issuance or distribution will not take place) (the “Distribution Trigger Irrevocable Physical Settlement Period”), the Company shall be permitted to provide no less than 10 Scheduled Trading Days’ notice prior to the Ex-Dividend Date for the applicable issuance or distribution, in which case the Company shall be required to settle all conversions of Notes with a Conversion Date occurring during the Distribution Trigger Irrevocable Physical Settlement Period by Physical Settlement, and the Company shall describe the same in such notice. Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at any time until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take place, in each case, even if the Notes are not otherwise convertible at such time. Notwithstanding the foregoing, ; provided that Holders may not convert their Notes under pursuant to this Section 14.01(b)(iisubsection (b)(ii) if they participate (other than in the case of a share split or share combination) participate, at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described under this Section 14.01(b)(ii)(Ain clause (A) or clause (B) of this subsection (b)(ii) without having to convert their Notes as if they held a number of shares of Common Stock equal to the then-effective Conversion Rate Rate, multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. Neither the Trustee not the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether an issuance or distribution described in this clause (ii) has occurred.
(iiiii) If (A) a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close of business on the Business Day immediately preceding August 15November 1, 2029, regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section 15.02, or if (B) the Company is a party to a Share Exchange Event (other than a Share Exchange Event that is solely for the purpose of changing the Company’s jurisdiction of organization that (x) does not constitute a Fundamental Change or a Make-Whole Fundamental ChangeChange and (y) results in a reclassification, conversion or exchange of outstanding shares of Common Stock solely into shares of common stock of the surviving entity and such common stock becomes Reference Property for the Notes) that occurs prior to the close of business on the Business Day immediately preceding August 15November 1, 20292029 (each such Fundamental Change, in each caseMake-Whole Fundamental Change or Share Exchange Event, pursuant to which the Common Stock would be converted into cash, securities or other assetsa “Corporate Event”), all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the effective date of the transaction such Corporate Event until the earlier of (x) 35 Trading Days after the effective date of the Corporate Event (or, if the Company gives notice after the effective date of such transaction Corporate Event as provided in the next succeeding sentence, until 35 Trading Days after the date the Company gives notice of the effective date of such Corporate Event) or, if such transaction Corporate Event also constitutes a Fundamental Change (other than an Exempted Fundamental Change), until the close of business on the Business Day immediately preceding the related Fundamental Change Repurchase Date and (y) the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date. The Company shall notify in writing Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than in writing as promptly as practicable following the effective date of such transaction. Neither Corporate Event, but in no event later than one Business Day after the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination effective date of whether a Fundamental Change or a Make-Whole Fundamental Change has occurredsuch Corporate Event.
(iiiiv) Prior to the close of business on the Business Day immediately preceding August 15November 1, 2029, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar quarter commencing after the calendar quarter ending on March 31June 30, 2025 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day. The Company shall determine at the beginning of each calendar quarter commencing after March 31, 2025 whether the Notes may be surrendered for conversion in accordance with this clause (iv) and shall provide written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) if the Notes become convertible in accordance with this clause (iv). Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether the condition set forth in this clause (iv) has been met.
(ivv) If the Company calls any or all of the Notes for redemption Optional Redemption or Cleanup Redemption pursuant to Article 16 prior to the close of business on the Business Day immediately preceding August 15, 202916, then a Holder may surrender all or any part of such portion of its Called Notes as called for redemption for conversion at any time prior to the close of business on the second Scheduled Trading Day prior to immediately preceding the applicable Redemption Date, even if the Called Notes are not otherwise convertible at such time. After that time, the right to convert such Called Notes pursuant to this Section 14.01(b)(v) on account of the Company’s delivery of a Notice of Optional Redemption or Notice of Cleanup Redemption, as the case may be, shall expire, unless the Company defaults in the payment of the Redemption Price, in which case a Holder of Called Notes may convert all or a portion of its Called Notes until the Redemption Price has been paid or duly provided for. If the Company elects to redeem fewer than all of the outstanding Notes for Optional Redemption pursuant to Article 16, and the Holder of any Note (or any owner of a beneficial interest in any Global Note) is reasonably not able to determine, prior to the close of business on the 64th Scheduled Trading Day immediately preceding the relevant Redemption Date, whether such Note or beneficial interest, as applicable, is to be redeemed pursuant to such Optional Redemption, then such Holder or owner, as applicable, will be entitled to convert such Note or beneficial interest, as applicable, at any time before the close of business on the Scheduled Trading Day immediately preceding such Redemption Date, unless the Company defaults in the payment of the Redemption Price, in which case such Holder or owner, as applicable, will be entitled to convert such Note or beneficial interest, as applicable, until the Redemption Price has been paid or duly provided for, and each such conversion will be deemed to be of a Note called for Optional Redemption, and such Note or beneficial interest will be deemed called for Optional Redemption solely for the purposes of such conversion (“Deemed Redemption”). If a Holder elects to convert Called Notes during the related Redemption Period, the Company will, under certain circumstances, increase the Conversion Rate for such Called Notes pursuant to Section 14.03. Accordingly, if the Company elects to redeem fewer than all of the outstanding Notes for Optional Redemption pursuant to Article 16, Holders of the Notes that are not Called Notes for Optional Redemption will not be entitled to convert such Notes pursuant to this Section 14.01(b)(v) and will not be entitled to an increase in the Conversion Rate on account of the Notice of Optional Redemption for conversions of such Notes during the related Redemption Period, even if such Notes are otherwise convertible pursuant to any other provision of this Section 14.01(b).
Appears in 1 contract
Sources: Indenture (Lci Industries)
Conversion Privilege. (a) Subject to and upon compliance with the provisions of this Article 14, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the Business Day immediately preceding August December 15, 2029 2028 under the circumstances and during the periods set forth in Section 14.01(b), and (ii) regardless of the conditions described in Section 14.01(b), on or after August December 15, 2029 2028 and prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 62.3539 15.4213 shares of Common Stock (subject to adjustment as provided in this Article 14, the “Conversion Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.02, the “Conversion Obligation”).
(ab) (i) Prior to the close of business on the Business Day immediately preceding August December 15, 20292028, a Holder may surrender all or any portion of its Notes for conversion at any time during the five Business Day period immediately after any five ten consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this subsection (b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on each such Trading Day and the Conversion Rate on each such Trading Day. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this subsection (b)(i) and the definition of Trading Price set forth in this Indenture. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes unless the Company has requested such determination, and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes) unless a Holder of at least $1,000,000 3,000,000 aggregate principal amount of Notes requests in writing that the Company make such a determination and provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the Conversion Rate on such Trading Day, at which time the Company shall instruct three nationally recognized securities dealers to deliver bids and instruct the Bid Solicitation Agent (if other than the Company) to determine, or if the Company is acting as Bid Solicitation Agent, the Company shall determine, the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not not, when the Company is required to, instruct the Bid Solicitation Agent to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentence, or if the Company instructs the Bid Solicitation Agent to obtain bids and the Bid Solicitation Agent fails to make such determination, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, then, in either case, the Trading Price per $1,000 principal amount of Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company shall so notify in writing the Holders, the Trustee and the Conversion Agent (if other than the Trustee). If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate for such date, the Company shall so notify in writing the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee).
(i) If, prior to the close of business on the Business Day immediately preceding August 15, 2029, and thereafter neither the Company elects to:
(A) issue to all or substantially all holders of nor the Common Stock any rights, options or warrants (other than in connection with a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock) entitling them, for a period of not more than 45 calendar days after the announcement date of such issuance, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance; or
(B) distribute to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase securities of the Company (other than pursuant to a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock), which distribution has a per share value, as reasonably determined by the Board of Directors, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution, then, in either case, the Company shall notify in writing all Holders of the Notes, the Trustee and the Conversion Bid Solicitation Agent (if other than the TrusteeCompany) at least 30 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan, no later than the Business Day after the Company becomes aware that such separation has occurred or will occur); provided, however, that if the Company elects Physical Settlement (to the extent that the Company has not elected another Settlement Method to apply, including pursuant to Section 14.02) in the applicable notice in respect of any conversions that occurs from, and including, the date the Company provides such notice to, and including, the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or issuance (or, if earlier, the date the Company announces that such issuance or distribution will not take place) (the “Distribution Trigger Irrevocable Physical Settlement Period”), the Company shall be permitted to provide no less than 10 Scheduled Trading Days’ notice prior to the Ex-Dividend Date for the applicable issuance or distribution, in which case the Company shall be required to settle all conversions of Notes with a Conversion Date occurring during solicit bids (or determine the Distribution Trigger Irrevocable Physical Settlement Period by Physical Settlement, and the Company shall describe the same in such notice. Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at any time until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take place, in each case, even if the Notes are not otherwise convertible at such time. Notwithstanding the foregoing, Holders may not convert their Notes under this Section 14.01(b)(ii) if they participate (other than in the case of a share split or share combination) at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described under this Section 14.01(b)(ii)(A) or (B) without having to convert their Notes as if they held a number of shares of Common Stock equal to the then-effective Conversion Rate multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. Neither the Trustee not the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether an issuance or distribution described in this clause (ii) has occurred.
(ii) If a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section 15.02, or if the Company is a party to a Share Exchange Event (other than a Share Exchange Event that is solely for the purpose of changing the Company’s jurisdiction of organization that does not constitute a Fundamental Change or Make-Whole Fundamental Change) that occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, in each case, pursuant to which the Common Stock would be converted into cash, securities or other assets, all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the effective date of the transaction until the earlier of (x) 35 Trading Days after the effective date of such transaction or, if such transaction also constitutes a Fundamental Change, until the close of business on the Business Day immediately preceding the related Fundamental Change Repurchase Date and (y) the second Scheduled Trading Day immediately preceding the Maturity Date. The Company shall notify in writing Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the effective date of such transaction. Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether a Fundamental Change or a Make-Whole Fundamental Change has occurred.
(iii) Prior to the close of business on the Business Day immediately preceding August 15, 2029, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar quarter commencing after the calendar quarter ending on March 31, 2025 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day. The Company shall determine at the beginning of each calendar quarter commencing after March 31, 2025 whether the Notes may be surrendered for conversion in accordance with this clause (iv) and shall provide written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) if the Notes become convertible in accordance with this clause (iv). Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether the condition as set forth in this clause Indenture) again until a new Holder request is made as provided in this subsection (iv) has been metb)(i).
(iv) If the Company calls any or all of the Notes for redemption pursuant to Article 16 prior to the close of business on the Business Day immediately preceding August 15, 2029, then a Holder may surrender all or any part of such of its Notes as called for redemption for conversion at any time prior to the close of business on the second Scheduled Trading Day prior to the Redemption Date, even if the Notes are not otherwise convertible at such time. After that time, the right to convert such Notes pursuant to this Section 14.01(b)(v) shall expire, unless the Company defaults in the payment of the Redemption Price, in which case a Holder of Notes may convert its Notes until the Redemption Price has been paid or duly provided for.
Appears in 1 contract
Sources: Indenture (Rapid7, Inc.)
Conversion Privilege. (a) Subject to and upon compliance with the provisions of this Article 14, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the Business Day immediately preceding August 15April 1, 2029 2025 under the circumstances and during the periods set forth in Section 14.01(b), and (ii) regardless of the conditions described in Section 14.01(b), on or after August 15April 1, 2029 2025 and prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 62.3539 6.6315 shares of Common Stock (subject to adjustment as provided in this Article 14, the “Conversion Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.02, the “Conversion Obligation”).
(ab) (i) Prior to the close of business on the Business Day immediately preceding August 15April 1, 20292025, a Holder may surrender all or any portion of its Notes for conversion at any time during the five Business Day period immediately after any five consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this subsection (b)(iSection 14.01(b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on each such Trading Day and the Conversion Rate on each such Trading Day. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this subsection (b)(iSection 14.01(b)(i) and the definition of Trading Price set forth in this Indenture. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine solicit the Trading Price per $1,000 principal amount of Notes unless the Company has requested such determinationsolicitation, and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes) unless a Holder of at least $1,000,000 2,000,000 aggregate principal amount of Notes requests in writing that the Company make such a determination and provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the Conversion Rate on such Trading Day. At such time, at which time the Company shall (i) instruct three independent nationally recognized securities dealers to deliver bids to the Bid Solicitation Agent and (ii) instruct the Bid Solicitation Agent (if other than the Company) to determinesolicit, or if the Company is acting as Bid Solicitation Agent, the Company shall determine, the Trading Price per $1,000 principal amount of Notes solicit such bids beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not instruct the Bid Solicitation Agent in writing to determine the Trading Price per $1,000 principal amount of Notes solicit bids when obligated as provided in the preceding sentence, or if the Company instructs the Bid Solicitation Agent to obtain solicit bids and the Bid Solicitation Agent fails to make such determinationsolicitation, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination solicitation when obligated as provided in the preceding sentence, sentence then, in either case, the Trading Price per $1,000 principal amount of Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate on each Trading Day of such failure. The Company shall determine the Trading Price in accordance with the bids solicited by the Bid Solicitation Agent. If the Trading Price condition set forth above Condition has been metmet on any Trading Day, the Company shall so notify in writing the Holders, the Trustee and the Conversion Agent (if other than the Trustee)) in writing on or within one Business Day of such Trading Day. If, at any time after the Trading Price condition set forth above Condition has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate for such dateTrading Day, the Company shall so notify in writing the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee).
(i) If, prior to in writing that the close of business on the Business Day immediately preceding August 15, 2029, Trading Price Condition is no longer met and thereafter neither the Company elects to:
(A) issue to all or substantially all holders of nor the Common Stock any rights, options or warrants (other than in connection with a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock) entitling them, for a period of not more than 45 calendar days after the announcement date of such issuance, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance; or
(B) distribute to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase securities of the Company (other than pursuant to a stockholder rights plan so long as such rights have not separated from the shares of the Common Stock), which distribution has a per share value, as reasonably determined by the Board of Directors, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution, then, in either case, the Company shall notify in writing all Holders of the Notes, the Trustee and the Conversion Bid Solicitation Agent (if other than the TrusteeCompany) at least 30 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan, no later than the Business Day after the Company becomes aware that such separation has occurred or will occur); provided, however, that if the Company elects Physical Settlement (to the extent that the Company has not elected another Settlement Method to apply, including pursuant to Section 14.02) in the applicable notice in respect of any conversions that occurs from, and including, the date the Company provides such notice to, and including, the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or issuance (or, if earlier, the date the Company announces that such issuance or distribution will not take place) (the “Distribution Trigger Irrevocable Physical Settlement Period”), the Company shall be permitted to provide no less than 10 Scheduled Trading Days’ notice prior to the Ex-Dividend Date for the applicable issuance or distribution, in which case the Company shall be required to settle all conversions of Notes with solicit bids again until a Conversion Date occurring during the Distribution Trigger Irrevocable Physical Settlement Period by Physical Settlement, and the Company shall describe the same new Holder request is made as provided in such notice. Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at any time until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take place, in each case, even if the Notes are not otherwise convertible at such time. Notwithstanding the foregoing, Holders may not convert their Notes under this Section 14.01(b)(ii) if they participate (other than in the case of a share split or share combination) at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described under this Section 14.01(b)(ii)(A) or (B) without having to convert their Notes as if they held a number of shares of Common Stock equal to the then-effective Conversion Rate multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. Neither the Trustee not the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether an issuance or distribution described in this clause (ii) has occurred.
(ii) If a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section 15.02, or if the Company is a party to a Share Exchange Event (other than a Share Exchange Event that is solely for the purpose of changing the Company’s jurisdiction of organization that does not constitute a Fundamental Change or Make-Whole Fundamental Change) that occurs prior to the close of business on the Business Day immediately preceding August 15, 2029, in each case, pursuant to which the Common Stock would be converted into cash, securities or other assets, all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the effective date of the transaction until the earlier of (x) 35 Trading Days after the effective date of such transaction or, if such transaction also constitutes a Fundamental Change, until the close of business on the Business Day immediately preceding the related Fundamental Change Repurchase Date and (y) the second Scheduled Trading Day immediately preceding the Maturity Date. The Company shall notify in writing Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the effective date of such transaction. Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether a Fundamental Change or a Make-Whole Fundamental Change has occurred.
(iii) Prior to the close of business on the Business Day immediately preceding August 15, 2029, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar quarter commencing after the calendar quarter ending on March 31, 2025 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day. The Company shall determine at the beginning of each calendar quarter commencing after March 31, 2025 whether the Notes may be surrendered for conversion in accordance with this clause (iv) and shall provide written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) if the Notes become convertible in accordance with this clause (iv14.01(b)(i). Neither the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether the condition set forth in this clause (iv) Trading Price Condition has been met.
(iv) If the Company calls any or all of the Notes for redemption pursuant to Article 16 prior to the close of business on the Business Day immediately preceding August 15, 2029, then a Holder may surrender all or any part of such of its Notes as called for redemption for conversion at any time prior to the close of business on the second Scheduled Trading Day prior to the Redemption Date, even if the Notes are not otherwise convertible at such time. After that time, the right to convert such Notes pursuant to this Section 14.01(b)(v) shall expire, unless the Company defaults in the payment of the Redemption Price, in which case a Holder of Notes may convert its Notes until the Redemption Price has been paid or duly provided for.
Appears in 1 contract
Sources: Indenture (Zscaler, Inc.)
Conversion Privilege. (a) Subject to and upon compliance with the provisions of this Article 14, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the Business Day immediately preceding August December 15, 2029 2028 under the circumstances and during the periods set forth in Section 14.01(b), and (ii) regardless of the conditions described in Section 14.01(b), on or after August December 15, 2029 2028 and prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 62.3539 6.2277 shares of Common Stock (subject to adjustment as provided in this Article 14, the “Conversion Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.02, the “Conversion Obligation”).
(a) (i) Prior to the close of business on the Business Day immediately preceding August December 15, 20292028, a Holder may surrender all or any portion of its Notes for conversion at any time during the five consecutive Business Day period immediately after any five ten consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this subsection (b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on each such Trading Day and the Conversion Rate on each such Trading Day. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this subsection (b)(i) and the definition of Trading Price set forth in this Indenture. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes unless the Company has requested such determination, and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes) unless a Holder or Holders of at least $1,000,000 aggregate 5,000,000 principal amount of Notes requests in writing that the Company make such a determination and provides aggregate provide(s) the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the Conversion Rate on such Trading Day, at which time the Company shall instruct three nationally recognized securities dealers to deliver bids and instruct the Bid Solicitation Agent (if other than the Company) in writing to determine, or if the Company is acting as Bid Solicitation Agent, the Company shall determine, the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not not, when the Company is required to, instruct the Bid Solicitation Agent to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentence, or if the Company instructs gives such instruction to the Bid Solicitation Agent to obtain bids and the Bid Solicitation Agent fails to make such determination, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, then, in either case, the Trading Price per $1,000 principal amount of Notes on any date shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company shall promptly so notify in writing the Holders, the Trustee and the Conversion Agent (if other than the Trustee)) in writing. Any such determination shall be conclusive absent manifest error. If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate for such date, the Company shall promptly so notify in writing the Holders of the NotesHolders, the Trustee and the Conversion Agent (if other than the Trustee) in writing and thereafter neither the Company nor the Bid Solicitation Agent (if other than the Company) shall be required to solicit bids (or determine the Trading Price of the Notes as set forth in this Indenture) again unless a new Holder request is made as provided in this subsection (b)(i). Neither the Trustee nor the Bid Solicitation Agent (if other than the Company) shall have any liability or responsibility for any Trading Price or related information or the accuracy thereof.
(iii) If, prior to the close of business on the Business Day immediately preceding August December 15, 20292028, the Company elects to:
(A) issue distribute to all or substantially all holders of the Common Stock any rights, options or warrants (other than in connection with a stockholder rights plan so long as prior to the separation of such rights have not separated from the shares of the Common Stock) entitling them, for a period of not more than 45 60 calendar days after the announcement date of such issuancedistribution, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuancedistribution; or
(B) distribute to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase securities of the Company (other than pursuant to in connection with a stockholder rights plan so long as prior to separation of such rights have not separated from the shares of the Common Stock), which distribution has a per share value, as reasonably determined by the Board of DirectorsCompany in good faith, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution, then, in either case, the Company shall notify in writing all Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) in writing at least 30 31 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan, no later than the Business Day as soon as reasonably practicable after the Company becomes aware that such separation or triggering event has occurred or will occur); provided, however, that if the Company elects Physical Settlement (to the extent that the Company has not elected another Settlement Method to apply, including pursuant to Section 14.02) in the applicable notice in respect of any conversions that occurs from, and including, the date the Company provides such notice to, and including, the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or issuance (or, if earlier, the date the Company announces that such issuance or distribution will not take place) (the “Distribution Trigger Irrevocable Physical Settlement Period”), the Company shall be permitted to provide no less than 10 Scheduled Trading Days’ notice prior to the Ex-Dividend Date for the applicable issuance or distribution, in which case the Company shall be required to settle all conversions of Notes with a Conversion Date occurring during the Distribution Trigger Irrevocable Physical Settlement Period by Physical Settlement, and the Company shall describe the same in such notice. Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at any time until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take place, in each case, even if the Notes are not otherwise convertible at such time. Notwithstanding the foregoing, ; provided that Holders may not convert their Notes under pursuant to this Section 14.01(b)(iisubsection (b)(ii) if they participate (other than in the case of a share split or share combination) participate, at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described under this Section 14.01(b)(ii)(Ain clause (A) or (B) of this subsection (b)(ii) without having to convert their Notes as if they held a number of shares of Common Stock equal to the then-effective Conversion Rate Rate, multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. Neither the Trustee not the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether an issuance or distribution described in this clause (ii) has occurred.
(iiiii) If (A) a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close of business on the Business Day immediately preceding August December 15, 20292028, regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section 15.02, or (B) if the Company is a party to a Share Exchange Event (other than a Share Exchange Event that is solely for the purpose of changing the Company’s jurisdiction of organization that (x) does not constitute a Fundamental Change or a Make-Whole Fundamental ChangeChange and (y) results in a reclassification, conversion or exchange of outstanding shares of Common Stock solely into shares of common stock of the surviving entity and such common stock becomes Reference Property for the Notes) that occurs prior to the close of business on the Business Day immediately preceding August December 15, 20292028 (each such Fundamental Change, in each caseMake-Whole Fundamental Change or Share Exchange Event, pursuant to which the Common Stock would be converted into cash, securities or other assetsa “Corporate Event”), all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the effective date of the transaction such Corporate Event until the earlier of (x) 35 Trading Days after the effective date of the Corporate Event (or, if the Company gives notice after the effective date of such transaction Corporate Event, until 35 Trading Days after the date the Company gives notice of such Corporate Event) or, if such transaction Corporate Event also constitutes a Fundamental Change (other than an Exempted Fundamental Change), until the close of business on the Business Day immediately preceding the related Fundamental Change Repurchase Date and (y) the second Scheduled Trading close of business on the Business Day immediately preceding the Maturity Date. The Company shall notify in writing Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than in writing as promptly as practicable following the effective date of such transaction. Neither Corporate Event, but in no event later than two Business Days after the Trustee nor the Conversion Agent shall have any duty to determine or verify the Company’s determination effective date of whether a Fundamental Change or a Make-Whole Fundamental Change has occurredsuch Corporate Event.
(iiiiv) Prior to the close of business on the Business Day immediately preceding August December 15, 20292028, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar quarter commencing after the calendar quarter ending on March 31June 30, 2025 2026 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day. The Company shall determine at the beginning of each calendar quarter commencing after March 31June 30, 2025 2026 whether the Notes may be surrendered for conversion in accordance with this clause (iv) and shall provide prompt written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) if the Notes become convertible in accordance with this clause (iv). Neither the Trustee nor the Conversion Agent (if other than the Trustee) shall have any duty to determine or verify such determination by the Company’s Company pursuant to this clause (iv) or any similar determination of whether by the Company that the Notes have become convertible in accordance with any condition set forth in this clause (iv) has been metSection 14.01(b).
(iv) If the Company calls any or all of the Notes for redemption pursuant to Article 16 prior to the close of business on the Business Day immediately preceding August 15, 2029, then a Holder may surrender all or any part of such of its Notes as called for redemption for conversion at any time prior to the close of business on the second Scheduled Trading Day prior to the Redemption Date, even if the Notes are not otherwise convertible at such time. After that time, the right to convert such Notes pursuant to this Section 14.01(b)(v) shall expire, unless the Company defaults in the payment of the Redemption Price, in which case a Holder of Notes may convert its Notes until the Redemption Price has been paid or duly provided for.
Appears in 1 contract
Sources: Indenture (Duke Energy CORP)