Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 13.02, Section 13.03(b) and Section 13.07(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying or delivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), Common Shares, together, if applicable, with cash in lieu of delivering any fractional Common Share in accordance with Section 13.02(j) (“Physical Settlement”), or a combination of cash and Common Shares, together, if applicable, with cash in lieu of delivering any fractional Common Share in accordance with Section 13.02(j) (“Combination Settlement”), at its election, as set forth in this Section 13.02, subject to the requirements of Section 13.07. (i) All conversions for which the relevant Conversion Date occurs during a Redemption Period shall be settled using the same Settlement Method, and all conversions for which the relevant Conversion Date occurs on or after December 1, 2023 shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs during a Redemption Period and any conversions for which the relevant Conversion Date occurs on or after December 1, 2023, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion Date (or any conversion for which the relevant Conversion Date occurs during a Redemption Period on or after December 1, 2023), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company shall deliver such Settlement Notice to converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions of any Notes for which the relevant Conversion Date occurs (A) during a Redemption Period, in the applicable Redemption Notice or (B) on or after December 1, 2023, no later than the close of business on the Business Day immediately preceding December 1, 2023. If the Company does not elect a Settlement Method with respect to any conversion prior to the deadline set forth in the immediately preceding sentence, then the Company shall be deemed to have elected the Default Settlement Method in respect of such conversion. Such Settlement Notice, if provided, shall specify the relevant Settlement Method and, in the case of Combination Settlement, the applicable Specified Dollar Amount. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. For the avoidance of doubt, the Company’s failure to so select a Settlement Method or Specified Dollar Amount when so permitted shall not constitute a Default or Event of Default under this Indenture or the Notes. By notice to the Holders, the Company may change the Default Settlement Method to any permitted Settlement Method, except it may not change the Default Settlement Method during any Redemption Period (in respect of Notes converted with a Conversion Date occurring during such Redemption Period) or on or after December 1, 2023 (in respect of Notes converted with a Conversion Date that occurs on or after December 1, 2023). (iv) The cash, Common Shares or combination of cash and Common Shares in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows in respect of each $1,000 principal amount of Notes being converted: (A) if Physical Settlement applies to such conversion, a number of Common Shares equal to the Conversion Rate in effect on the Conversion Date for such conversion; (B) if Cash Settlement applies to such conversion, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 25 consecutive Trading Days during the related Observation Period; and (C) if Combination Settlement applies to such conversion, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 25 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional Common Share, if any, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the same. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section 13.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the Applicable Procedures and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any Common Shares to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 13 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 14.02. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 13.03(b) and Section 13.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if Physical Settlement applies, or on the second Business Day immediately following the last Trading Day of the Observation Period, if any other Settlement Method applies. If any Common Shares are due to a converting Holder, the Company shall issue and deliver (or otherwise cause to be delivered) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of Common Shares to which such Holder shall be entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any Common Shares upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the Common Shares being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section 13.04, no adjustment shall be made for dividends on any Common Shares issued upon the conversion of any Note as provided in this Article 13. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below in this Section 13.02(h), and the Company will not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and Common Shares, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided, however, that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, shall receive the full interest payment due on Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name any Common Shares shall be issuable upon conversion shall be treated as a shareholder of record of such shares as of the close of business on the relevant Conversion Date (if Physical Settlement applies to such conversion) or as of the close of business on the last Trading Day of the relevant Observation Period (if Combination Settlement applies to such conversion), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional Common Share upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Common Share issuable upon conversion based on the Daily VWAP for the relevant Conversion Date, in the case of Physical Settlement, or based on the Daily VWAP for the last Trading Day of the relevant Observation Period, in the case of Combination Settlement. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be issuable upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 2 contracts
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 13.02, Section 13.03(b) 14.02 and Section 13.07(a14.06(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying or delivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Physical Settlement”), ) or a combination of cash and shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Combination Settlement”), at its election, as set forth in this Section 13.02, subject to the requirements of Section 13.0714.02.
(i) All conversions for which the relevant Conversion Date occurs during a Redemption Period (x) on or after January 1, 2028 shall be settled using the same Settlement Method, and all conversions for which the relevant Conversion Date occurs on Method or after December 1, 2023 (y) during a Redemption Period shall be settled using the same Settlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs during a Redemption Period and any conversions for which the relevant Conversion Date occurs on or after December January 1, 20232028, the Company shall use the same Settlement Method for all conversions with occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with that occur on different Conversion Dates.
(iii) If, in respect of any Conversion Date (or in the case of any conversion for which the relevant Conversion Date occurs conversions occurring (x) during a Redemption Period or (y) on or after December January 1, 20232028), the Company elects to deliver a notice (the a “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company shall deliver such Settlement Notice to converting Holders Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Scheduled Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions of any Notes for which the relevant Conversion Date occurs occurring (Ax) during a Redemption Period, in the applicable such Redemption Notice Notice, or (By) on or after December January 1, 20232028, no later than the close of business on the Business Scheduled Trading Day immediately preceding December January 1, 20232028) (in each case, the “Settlement Method Election Deadline”). If the Company does not timely elect a Settlement Method with respect to any conversion prior to the deadline set forth in the immediately preceding sentence, then the Company shall no longer have the right to elect Cash Settlement or Combination Settlement for such Conversion Date or during such period and the Company shall be deemed to have elected the Default Physical Settlement Method in respect of such conversionits Conversion Obligation. Such Settlement Notice, if provided, Notice shall specify the relevant Settlement Method and, and in the case of an election of Combination Settlement, the applicable relevant Settlement Notice shall indicate the Specified Dollar AmountAmount per $1,000 principal amount of Notes. If the Company timely delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. By notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to January 1, 2028, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of at least $1,000 for all Conversion Dates occurring subsequent to delivery of such notice. If the Company irrevocably elects Combination Settlement with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above a specific amount, the Company will, after the date of such election, inform Holders converting their Notes, the Trustee and the Conversion Agent (if other than the Trustee) of such Specified Dollar Amount no later than the relevant Settlement Method Election Deadline, or, if the Company does not timely notify Holders, the Trustee and the Conversion Agent (if other than the Trustee), such Specified Dollar Amount will be the specific amount set forth in the Settlement Notice or, if no specific amount was set forth in the Settlement Notice, such Specified Dollar Amount will be $1,000 per $1,000 principal amount of Notes. The irrevocable election will apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such notice; provided, however, that no such election will affect any settlement method theretofore elected (or deemed to be elected) with respect to any Note. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the Company’s failure need to so select a Settlement Method or Specified Dollar Amount when so permitted shall not constitute a Default or Event of Default under amend this Indenture or the Notes. By notice to the HoldersHowever, the Company may change nonetheless choose to execute such an amendment at its option. If the Default Company irrevocably fixes the Settlement Method pursuant to this Section 14.02(a)(iii), then, concurrently with providing notice to Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) of such election, the Company shall either post the fixed settlement method on its website or disclose the same in a current report on Form 8-K (or any permitted Settlement Method, except it may not change successor form) that is filed with the Default Settlement Method during any Redemption Period (in respect of Notes converted with a Conversion Date occurring during such Redemption Period) or on or after December 1, 2023 (in respect of Notes converted with a Conversion Date that occurs on or after December 1, 2023)Commission.
(iv) The cash, shares of Common Shares Stock or combination of cash and shares of Common Shares Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows follows:
(A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted:
(A) if Physical Settlement applies to such conversion, converted a number of shares of Common Shares Stock equal to the Conversion Rate in effect on the Conversion Date for such conversionDate;
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement applies to such conversionSettlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 25 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement applies to such conversionSettlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 25 consecutive Trading Days during the related Observation Period.
(v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Share, if anyStock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the sameDaily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 13.02(e14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the Applicable Procedures applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedure procedures of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state state, in writing therein therein, the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Shares Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h). The Trustee (and and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 13 14 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 14.0215.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 13.03(b) and Section 13.07(a14.06(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement appliesSettlement, or on the second Business Day immediately following the last Trading Day of the relevant Observation Period, if in the case of any other Settlement Method appliesMethod. If any shares of Common Shares Stock are due to a converting Holder, the Company shall issue and deliver (or otherwise cause to be delivered) issued, and deliver to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common Shares Stock to which such Holder shall be entitled, in book-entry format through the Depositary, entitled in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Shares Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that such tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Shares Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 13.0414.03, no adjustment shall be made for dividends on any shares of Common Shares Stock issued upon the conversion of any Note as provided in this Article 1314.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee Trustee, in writing writing, of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below in this Section 13.02(h), and the Company will not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notesbelow. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not includingexcluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not includingexcluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common SharesStock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided, however, provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following succeeding the corresponding Interest Payment Date; (3) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading Day immediately succeeding the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, any Fundamental Change Repurchase Date or Redemption Date, in each case, as described above, shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted and/or repurchased, as applicable, following such Regular Record Date.
(i) The Person in whose name any the shares of Common Shares shall be issuable Stock delivered upon conversion are registered shall be treated as a shareholder stockholder of record of such shares as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement applies to such conversionSettlement) or as of the close of business on the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement applies to such conversionSettlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional share of Common Share Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Share Stock issuable upon conversion based on the Daily VWAP for on the relevant Conversion Date, Date (in the case of Physical Settlement, or based on the Daily VWAP for the last Trading Day of the relevant Observation Period, in the case of Combination Settlement. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be issuable upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.)
Appears in 2 contracts
Sources: Indenture (Invitae Corp), Investment Agreement (Invitae Corp)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 13.0214.02, Section 13.03(b14.03(b) and Section 13.07(a14.07(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying pay or deliveringdeliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Physical Settlement”), ) or a combination of cash and shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Combination Settlement”), at its election, as set forth in this Section 13.02, 14.02 and subject in all respects to the requirements of Section 13.0714.02(a)(iii).
(i) All conversions for which the relevant Conversion Date occurs during a Redemption Period shall be settled using the same Settlement Method, and all conversions for which the relevant Conversion Date occurs on or after December 115, 2023 2021 shall be settled using the same Settlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs during a Redemption Period and any conversions for which the relevant Conversion Date occurs on or after December 115, 20232021, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates.
(iii) Notwithstanding anything to the contrary in this Indenture or the Notes, the Company shall not elect a Settlement Method, and the Company shall be deemed to have elected Cash Settlement, in respect of any conversion of Notes for which the relevant Conversion Date occurs prior to the first date (the “Stockholder Approval Date”) on which (x) the Company’s stockholders have approved an increase in the number of authorized but unissued shares of the Common Stock that are not reserved for other purposes sufficient for the Company to issue and deliver upon conversion of all outstanding Notes the full number of shares of Common Stock underlying such Notes, assuming for such purposes that a single Holder converted all outstanding Notes and the Company elected Physical Settlement in respect of such conversion, and including the maximum number of Additional Shares that may be added to the Conversion Rate upon conversion in connection with a Make-Whole Fundamental Change, as described in Section 14.03 (the “Maximum Number of Underlying Shares”) and (y) the Company has reserved for issuance upon conversion of all outstanding Notes a number of shares of Common Stock equal to the Maximum Number of Underlying Shares. For any conversions for which the relevant Conversion Date occurs on or after the Stockholder Approval Date, the Company may elect Cash Settlement, Physical Settlement or Combination Settlement as otherwise described in this Section 14.02. If the Company receives stockholder approval on any day, the Company shall notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) within five Business Days of such approval.
(iv) If, in respect of any Conversion Date (or in respect of any conversion for which the relevant Conversion Date occurs during a Redemption Period on or after December 115, 20232021), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such periodin respect of any conversion for which the relevant Conversion Date occurs on or after December 15, as the case may be2021), the Company Company, through the Conversion Agent, shall deliver such Settlement Notice to converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions of any Notes for which the relevant Conversion Date occurs (A) during a Redemption Period, in the applicable Redemption Notice or (B) on or after December 115, 20232021, no later than the close of business on the Business Day immediately preceding December 115, 20232021). If the Company does not elect a Settlement Method with in respect of any conversions for which the relevant Conversion Date occurs on or after the Stockholder Approval Date, the Company shall no longer have the right to any conversion prior to the deadline set forth in the immediately preceding sentence, then elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected the Default Combination Settlement Method in respect of such conversionits Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice, if provided, Notice shall specify the relevant Settlement Method and, and in the case of an election of Combination Settlement, the applicable relevant Settlement Notice shall indicate the Specified Dollar AmountAmount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. For the avoidance of doubt, the Company’s failure to so select a Settlement Method or Specified Dollar Amount when so permitted shall not constitute a Default or Event of Default under this Indenture or the Notes. By notice to the Holders, the Company may change the Default Settlement Method to any permitted Settlement Method, except it may not change the Default Settlement Method during any Redemption Period (in respect of Notes converted with a Conversion Date occurring during such Redemption Period) or on or after December 1, 2023 (in respect of Notes converted with a Conversion Date that occurs on or after December 1, 2023).
(ivv) The cash, shares of Common Shares Stock or combination of cash and shares of Common Shares Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows follows:
(A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted:
(A) if Physical Settlement applies to such conversion, converted a number of shares of Common Shares Stock equal to the Conversion Rate in effect on the Conversion Date for such conversionDate;
(B) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement applies to such conversionSettlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 25 40 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement applies to such conversionSettlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 25 40 consecutive Trading Days during the related Observation Period.
(vvi) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Share, if anyStock, the Company shall notify in writing the Trustee and the Conversion Agent (if other than the Trustee) of the sameDaily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the TrusteeCompany) shall have no responsibility for any such determination.
(b) Subject to Section 13.02(e14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the Applicable Procedures procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Shares Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, pay all applicable transfer or similar taxes, if any, as described in Section 14.02(e), (4) if required, furnish appropriate endorsements and transfer documents and (45) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h). The Trustee (and and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 13 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered for conversion by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 14.0215.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 13.03(b14.03(b) and Section 13.07(a14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation (i) on the second third Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement appliesSettlement; provided that, in the case of Physical Settlement, with respect to any Conversion Date occurring after the Regular Record Date immediately preceding the Maturity Date, settlement shall occur on the Maturity Date, or (ii) on the second third Business Day immediately following the last Trading Day of the Observation Period, if in the case of any other Settlement Method appliesMethod. If any shares of Common Shares Stock are due to a converting HolderHolders, the Company shall issue and deliver (or otherwise cause to be delivered) issued, and deliver to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common Shares Stock to which such Holder shall be entitled, in book-entry format through the Depositary, entitled in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Shares Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Shares Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 13.0414.04, no adjustment shall be made for dividends on any shares of Common Shares Stock issued upon the conversion of any Note as provided in this Article 1314.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below in this Section 13.02(h), and the Company will not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notesbelow. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common SharesStock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided, however, provided that no such payment shall be required (1) for conversions following after the close of business on the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (43) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all applicable Holders of record after the close of business on the Regular Record Date immediately preceding the Maturity Date, Date shall receive the full interest payment due on the Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date.
(i) The Person in whose name any the shares of Common Shares Stock shall be issuable upon conversion shall be treated as a shareholder stockholder of record of such shares as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement applies to such conversionSettlement) or as of the close of business on the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement applies to such conversionSettlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional share of Common Share Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Share Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date, Date (in the case of Physical Settlement, ) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period, Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be issuable issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 2 contracts
Sources: Indenture (Atlas Holdings, Inc.), Indenture (Impax Laboratories Inc)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 13.0214.02, Section 13.03(b14.03(b) and Section 13.07(a14.07(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying or delivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Physical Settlement”), ) or a combination of cash and shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Combination Settlement”), at its election, as set forth in this Section 13.02, subject to the requirements of Section 13.0714.02.
(i) All conversions of Called Notes for which the relevant Conversion Date occurs during a the related Redemption Period shall be settled using the same Settlement Method, and all conversions for which the relevant Conversion Date occurs on or after December May 1, 2023 2030, shall be settled using the same Settlement Method.
(ii) Except for any conversions of Called Notes for which the relevant Conversion Date occurs during a the related Redemption Period Period, and any conversions for which the relevant Conversion Date occurs on or after December May 1, 20232030, and except to the extent the Company has irrevocably elected Physical Settlement pursuant to Section 14.01(b)(ii) in a notice as described in such Section or previously made an irrevocable election with respect to all subsequent conversions in accordance with Section 14.02(a)(iii), the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates.
(iii) If, in respect of any Conversion Date (or any conversion conversions of Called Notes for which the relevant Conversion Date occurs during a the related Redemption Period Period, or for which the relevant Conversion Date occurs on or after December May 1, 20232030 or for which the Company has irrevocably elected Physical Settlement pursuant to Section 14.01(b)(ii) in a notice as described in such Section), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company shall deliver such Settlement Notice to converting Holders Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions (A) of any Called Notes for which the relevant Conversion Date occurs (A) during a the related Redemption Period, in the applicable Redemption such Notice or of Redemption, (B) for which the relevant Conversion Date occurs on or after December May 1, 20232030, no later than the close of business on the Business Day immediately preceding December May 1, 20232030 or (C) to the extent the Company has irrevocably elected Physical Settlement pursuant to Section 14.01(b)(ii) in a notice as described in such Section). If the Company does not elect a Settlement Method with respect to any conversion prior to the deadline set forth in the immediately preceding sentence, then the Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to any conversion on such Conversion Date or during such period, and the Company shall be deemed to have elected the Default Combination Settlement Method in respect of such conversionits Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice, if provided, Notice shall specify the relevant Settlement Method and, and in the case of an election of Combination Settlement, the applicable relevant Settlement Notice shall indicate the Specified Dollar AmountAmount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. By notice to all Holders, the Company may, prior to May 1, 2030, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through any Settlement Method that the Company is then permitted to elect, including Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 or with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above a specific amount set forth in such election notice. If the Company irrevocably elects Combination Settlement with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above a specific amount, the Company will, after the date of such election, inform Holders converting their Notes, the Trustee and the Conversion Agent (if other than the Trustee) in writing of such Specified Dollar Amount no later than the close of business on the Trading Day immediately following the relevant Conversion Date, or, if the Company does not timely notify Holders, such Specified Dollar Amount will be the specific amount set forth in the election notice or, if no specific amount was set forth in the election notice, such Specified Dollar Amount will be $1,000 per $1,000 principal amount of Notes. Such irrevocable election shall apply for all conversions of Notes with Conversion Dates occurring subsequent to delivery of such notice; provided, however, that no such election will affect any Settlement Method theretofore elected (or deemed to be elected) with respect to any Note. For the avoidance of doubt, such an irrevocable election, if made by the Company’s failure , will be effective without the need to so select a Settlement Method or Specified Dollar Amount when so permitted shall not constitute a Default or Event of Default under amend this Indenture or the Notes, including pursuant to Section 10.01(m). By However, the Company may nonetheless choose to execute such an amendment at its option. If the Company irrevocably fixes the Settlement Method pursuant to the provisions set forth in this paragraph, then, concurrently with providing notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) of such election, the Company may change shall either post the Default fixed Settlement Method to on its website or disclose the same in a Current Report on Form 8-K (or any permitted Settlement Method, except it may not change successor form) that is filed with the Default Settlement Method during any Redemption Period (in respect of Notes converted with a Conversion Date occurring during such Redemption Period) or on or after December 1, 2023 (in respect of Notes converted with a Conversion Date that occurs on or after December 1, 2023)Commission.
(iv) The cash, shares of Common Shares Stock or combination of cash and shares of Common Shares Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows follows:
(A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted:
(A) if Physical Settlement applies to such conversion, converted a number of shares of Common Shares Stock equal to the Conversion Rate in effect on the Conversion Date for such conversionDate;
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement applies to such conversionSettlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 25 20 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement applies to such conversionSettlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 25 20 consecutive Trading Days during the related Observation Period.
(v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Share, if anyStock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the sameDaily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 13.02(e14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the Applicable Procedures applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedure procedures of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Shares Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 13 14 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Holder H▇▇▇▇▇ has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 14.0215.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 13.03(bSection 14.03(b) and Section 13.07(a14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement applies(provided that, with respect to any Conversion Date following the Regular Record Date immediately preceding the Maturity Date where Physical Settlement applies to the related conversion, the Company shall settle any such conversion on the Maturity Date), or on the second Business Day immediately following the last Trading Day of the Observation Period, if in the case of any other Settlement Method appliesMethod. If any shares of Common Shares Stock are due to a converting Holder, the Company shall issue or cause to be issued, and deliver (or otherwise cause to be deliveredif applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of shares of Common Shares Stock to which such Holder shall be entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue or delivery of any shares of Common Shares Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Shares Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 13.0414.04, no adjustment shall be made for dividends on any shares of Common Shares Stock issued upon the conversion of any Note as provided in this Article 1314.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below in this Section 13.02(h), and the Company will not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notesbelow. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common SharesStock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided, however, provided that no such payment shall be required (1) for conversions following the close of business on the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, shall receive the full interest payment due on Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date.
(i) The Person in whose name any Common Shares shall be issuable upon conversion shall be treated as a shareholder of record of such shares as of the close of business on the relevant Conversion Date (if Physical Settlement applies to such conversion) or as of the close of business on the last Trading Day of the relevant Observation Period (if Combination Settlement applies to such conversion), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional Common Share upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Common Share issuable upon conversion based on the Daily VWAP for the relevant Conversion Date, in the case of Physical Settlement, or based on the Daily VWAP for the last Trading Day of the relevant Observation Period, in the case of Combination Settlement. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be issuable upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.H
Appears in 2 contracts
Sources: Indenture (Strive, Inc.), Indenture (Semler Scientific, Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 13.0214.02, Section 13.03(b14.03(b) and Section 13.07(a14.07(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying pay or deliveringdeliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Physical Settlement”), ) or a combination of cash and shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Combination Settlement”), at its election, as set forth in this Section 13.02, subject to the requirements of Section 13.0714.02.
(i) All conversions for which the relevant Conversion Date occurs during after the Company’s issuance of a Redemption Period shall be settled using Notice with respect to the same Settlement MethodNotes and prior to the related Redemption Date, and all conversions for which the relevant Conversion Date occurs on or after December 1February 15, 2023 2030 shall be settled using the same Settlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs during after the Company’s issuance of a Redemption Period Notice with respect to the Notes but prior to the related Redemption Date, and any conversions for which the relevant Conversion Date occurs on or after December 1February 15, 20232030, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates.
(iii) If, in respect of any Conversion Date (or any conversion for which one of the relevant Conversion Date occurs during a Redemption Period on or after December 1periods described in the third immediately succeeding set of parentheses, 2023as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company Company, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions of any Notes for which the relevant Conversion Date occurs (Ax) during after the date of issuance of a Redemption PeriodNotice with respect to the Notes and prior to the related Redemption Date, in the applicable such Redemption Notice Notice, or (By) on or after December 1February 15, 20232030, no later than the close of business on the Business Day immediately preceding December 1February 15, 20232030). If the Company does not elect a Settlement Method with respect to any conversion prior to the deadline set forth in the immediately preceding sentence, then the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected the Default Combination Settlement Method in respect of such conversionits Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice, if provided, Notice shall specify the relevant Settlement Method and, and in the case of an election of Combination Settlement, the applicable relevant Settlement Notice shall indicate the Specified Dollar AmountAmount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. For the avoidance of doubt, the Company’s failure to so select a Settlement Method or Specified Dollar Amount when so permitted shall not constitute a Default or Event of Default under this Indenture or the Notes. By notice to the Holders, the Company may change the Default Settlement Method to any permitted Settlement Method, except it may not change the Default Settlement Method during any Redemption Period (in respect of Notes converted with a Conversion Date occurring during such Redemption Period) or on or after December 1, 2023 (in respect of Notes converted with a Conversion Date that occurs on or after December 1, 2023).
(iv) The cash, shares of Common Shares Stock or combination of cash and shares of Common Shares Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows follows:
(1) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted:
(A) if Physical Settlement applies to such conversion, converted a number of shares of Common Shares Stock equal to the Conversion Rate in effect on the Conversion Date for such conversionDate;
(B2) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement applies to such conversionSettlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 25 40 consecutive Trading Days during the related Observation Period; and
(C3) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement applies to such conversionSettlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 25 40 consecutive Trading Days during the related Observation Period.
(v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Share, if anyStock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the sameDaily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(vi) By notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to February 15, 2030, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through any Settlement Method that the Company is then permitted to elect for all Conversion Dates occurring subsequent to delivery of such notice. Concurrently with providing notice to all Holders, the Trustee and the Conversion Agent (if other than the Trustee) of an election to irrevocably fix the Settlement Method, the Company shall promptly file with or furnish to the Commission a Current Report on Form 8-K disclosing, issue a press release announcing or post on the Company’s website an announcement, that the Company has elected to irrevocably fix the Settlement Method (and describing such Settlement Method). Notwithstanding the foregoing, no such irrevocable election shall affect any Settlement Method theretofore elected (or deemed to be elected) with respect to any Note pursuant to this Section 14.02. For the avoidance of doubt, such an irrevocable election, if made, shall be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(g). However, the Company may nonetheless choose to execute such an amendment at its option.
(b) Subject to Section 13.02(e14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the Applicable Procedures procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Shares Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 13 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered for conversion by a Holder thereof if such Holder ▇▇▇▇▇▇ has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 14.0215.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 13.03(b14.03(b) and Section 13.07(a14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement appliesSettlement, or on the second Business Day immediately following the last Trading Day of the Observation Period, if in the case of any other Settlement Method appliesMethod. If any shares of Common Shares Stock are due to a converting Holder, the Company shall issue or cause to be issued, and deliver (or otherwise cause to be deliveredif applicable) to the Conversion Agent or to such converting Holder, or such Holder’s nominee or nominees, the full number of shares of Common Shares Stock to which such Holder shall be entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Shares Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Shares Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 13.0414.04, no adjustment shall be made for dividends on any shares of Common Shares Stock issued upon the conversion of any Note as provided in this Article 1314.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below in this Section 13.02(h), and the Company will not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notesbelow. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common SharesStock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided, however, provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, Date shall receive the full interest payment due on the Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date.
(i) The Person in whose name any the shares of Common Shares Stock shall be issuable upon conversion shall be treated as a shareholder stockholder of record of such shares as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement applies to such conversionSettlement) or as of the close of business on the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement applies to such conversionSettlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional share of Common Share Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Share Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date, Date (in the case of Physical Settlement, ) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period, Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be issuable issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 2 contracts
Sources: Indenture (Porch Group, Inc.), Exchange and Subscription Agreement (Porch Group, Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 13.0214.02, Section 13.03(b14.03(b) and Section 13.07(a14.07(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying or delivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Physical Settlement”), ) or a combination of cash and shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Combination Settlement”), at its election, as set forth in this Section 13.02, subject to the requirements of Section 13.07.14.02
(i) All conversions for which the relevant Conversion Date occurs on or after May 1, 2030 or during a Redemption Period shall be settled using the same Settlement Method, and all conversions for which the relevant Conversion Date occurs on or after December 1, 2023 shall be settled using the same Settlement Method.
(ii) . Except for any conversions for which the relevant Conversion Date occurs during a Redemption Period and any conversions for which the relevant Conversion Date occurs on or after December May 1, 20232030 or during a Redemption Period, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates.
(iii) . If, in respect of any Conversion Date (or any conversion for which applicable period, as the relevant Conversion Date occurs during a Redemption Period on or after December 1, 2023case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company shall deliver such Settlement Notice to converting Holders Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Trading Day immediately following the relevant related Conversion Date (or, in the case of any conversions of any Notes for which the relevant Conversion Date occurs (Ax) during a Redemption Period, in the applicable such Redemption Notice or (By) on or after December May 1, 20232030, no later than the close of business on the Business Day immediately preceding December May 1, 20232030) (in each case, the “Settlement Method Election Deadline”). Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company does not elect a Settlement Method prior to the relevant Settlement Method Election Deadline with respect to any conversion prior to the deadline set forth in the immediately preceding sentencea conversion, then the Company shall be deemed to have elected the Default Settlement Method in with respect of to such conversion. Such Settlement Notice, if provided, shall specify the relevant Settlement Method and, in the case of Combination Settlement, the applicable Specified Dollar Amount. If the Company delivers a Settlement Notice prior to the relevant Settlement Method Election Deadline with respect to a conversion electing Combination Settlement (or is deemed to have elected Combination Settlement) in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes to be converted in such Settlement Notice, and does not deliver an updated Settlement Notice with such Specified Dollar Amount listed then on or prior to the Settlement Method Election Deadline, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be the Capped Combination Settlement Cash Amount or, following the date on which the limitation in Section 14.02(l) is no longer applicable, $1,000.
(ii) Following the date on which the limitation in Section 14.02(l) is no longer applicable, the Company may, from time to time, prior to May 1, 2030, change the Default Settlement Method by sending notice of the new Default Settlement Method to the Holders, the Trustee and the Conversion Agent (if other than the Trustee). In addition, the Company may, by notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee), following the date on which the limitation in Section 14.02(l) is no longer applicable and prior to May 1, 2030, at its option, elect to irrevocably fix the Settlement Method to any Settlement Method that the Company is then permitted to elect, including Combination Settlement with (x) a Specified Dollar Amount of $1,000 per $1,000 principal amount of Notes or (y) with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above any specific amount set forth in such election notice, provided, however, that the Company is not permitted to irrevocably elect solely Physical Settlement or any other method that could result in failure to comply with the Exchange Cap, if applicable. Concurrently with providing notice to all Holders of an election to change the Default Settlement Method or irrevocably fix the Settlement Method, the Company shall promptly either post an announcement on its website or issue a report on Form 8-K (or any successor form) disclosing such Default Settlement Method or irrevocably fixed Settlement Method. If the Company changes the Default Settlement Method or elects to irrevocably fix the Settlement Method, in either case, to Combination Settlement with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above a specified amount, the Company will, after the date of such change or election, as the case may be, inform Holders converting their Notes, the Trustee, and the Conversion Agent (if other than the Trustee) in writing of such Specified Dollar Amount no later than the relevant Settlement Method Election Deadline, or, if the Company does not timely notify Holders, such Specified Dollar Amount will be the specific amount set forth in the change or election notice or, if no specific amount was set forth in the change or election notice, such Specified Dollar Amount will be $1,000 per $1,000 principal amount of Notes. Such change in the Default Settlement Method or irrevocable election shall apply for all conversions of Notes with Conversion Dates occurring subsequent to delivery of such notice; provided, however, that no such change in the Default Settlement Method or irrevocable election will affect any Settlement Method theretofore elected (or deemed to be elected) with respect to any Note. For the avoidance of doubt, such an irrevocable election, if made, shall be effective without the Company’s failure need to so select a Settlement Method or Specified Dollar Amount when so permitted shall not constitute a Default or Event of Default under amend this Indenture or the Notes, including pursuant to Section 10.01(1). By notice to the HoldersHowever, the Company may change nonetheless choose to execute such an amendment at its option. The Trustee and the Default Settlement Method to Conversion Agent (if other than the Trustee) shall have no responsibility for any permitted such election of a Settlement Method, except it may not change the Default Settlement Method during any Redemption Period (in respect of Notes converted with a Conversion Date occurring during such Redemption Period) or on or after December 1, 2023 (in respect of Notes converted with a Conversion Date that occurs on or after December 1, 2023).
(iviii) The cash, shares of Common Shares Stock or combination of cash and shares of Common Shares Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows follows:
(A) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted:
(A) if Physical Settlement applies to such conversion, converted a number of shares of Common Shares Stock equal to the Conversion Rate in effect on the Conversion Date for such conversionDate;
(B) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement applies to such conversionSettlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 25 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement applies to such conversionSettlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 25 consecutive Trading Days during the related Observation Period.
(viv) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly and in any event within one Business Day following the last day of the Observation Period after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Share, if anyStock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) ), in writing, of the sameDaily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock, subject to Applicable Procedures. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(v) Notwithstanding anything to the contrary in this Indenture or the Notes, unless and until the date on which the limitation in Section 14.02(l) is no longer applicable, the Company shall be prohibited from electing Physical Settlement or Combination Settlement; provided that, prior to such date, the Company shall be permitted to elect Capped Combination Settlement.
(b) Subject to Section 13.02(e14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the Applicable Procedures in effect at that time and, if required, pay funds equal to the interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h) and, if required, pay all transfer or similar taxes, if any, pursuant to Section 14.02(e) and (ii) in the case of a Physical Note or a Global Note not approved for processing through the Depositary, (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) thereof (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Shares Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and documents, (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h) and (5) if required, pay all transfer or similar taxes, if any, pursuant to Section 14.02(e). The Trustee (and if different, the Conversion Agent) shall promptly notify the Company of any conversion pursuant to this Article 13 on the Conversion Date for such conversion14. No Notice of Conversion with respect to any Notes may be surrendered for conversion by a Holder thereof if such Holder ▇▇▇▇▇▇ has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 14.0215.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 13.03(b14.03(b) and Section 13.07(a14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement appliesSettlement, or on the second Business Day immediately following the last Trading Day of the Observation Period, if in the case of any other Settlement Method appliesMethod. If any shares of Common Shares Stock are due to a converting Holder, the Company shall issue or cause to be issued, and deliver (or otherwise cause to be deliveredif applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of shares of Common Shares Stock to which such Holder shall be entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Shares Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent Company acting through its Common Stock transfer agent may refuse to deliver the certificates representing the shares of Common Shares Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentencesentence is paid.
(f) Except as provided in Section 13.0414.04, no adjustment shall be made for dividends on any shares of Common Shares Stock issued upon the conversion of any Note as provided in this Article 1314.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below in this Section 13.02(h)below, and the Company will not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notesinterest. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not includingexcluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not includingexcluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes Notes, whether into cash or into a combination of cash and shares of Common SharesStock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date but prior to the open of business on the immediately following Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding such Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided, however, that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and converted on or prior to the Business Day immediately following the corresponding Interest Payment Date; Date (3) if regardless of whether the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to converting Holder was the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders Holder of record on the Regular Record Date immediately preceding the Maturity Date, shall receive the full interest payment due on Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date.
(i) The Person in whose name any Common Shares shall be issuable upon conversion shall be treated as a shareholder of record of such shares as of the close of business on the relevant Conversion Date (if Physical Settlement applies to such conversion) or as of the close of business on the last Trading Day of the relevant Observation Period (if Combination Settlement applies to such conversion), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional Common Share upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Common Share issuable upon conversion based on the Daily VWAP for the relevant Conversion Date, in the case of Physical Settlement, or based on the Daily VWAP for the last Trading Day of the relevant Observation Period, in the case of Combination Settlement. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be issuable upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.corresponding Regular
Appears in 2 contracts
Sources: Indenture (CorMedix Inc.), Indenture (CorMedix Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 13.0214.02, Section 13.03(b14.03(b) and Section 13.07(a14.07(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying pay or deliveringdeliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Physical Settlement”), ) or a combination of cash and shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Combination Settlement”), at its election, as set forth in this Section 13.02, subject to the requirements of Section 13.0714.02.
(i) All conversions for which the relevant Conversion Date occurs on or after May 15, 2026 or during a Redemption Period shall be settled using the same Settlement Method, and all conversions for which the relevant Conversion Date occurs on or after December 1, 2023 shall be settled using the same Settlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs during a Redemption Period and any conversions for which the relevant Conversion Date occurs on or after December 1May 15, 20232026, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates.
(iii) If, in respect of any Conversion Date (or any conversion for which the relevant Conversion Date occurs during a Redemption Period on or after December 1period described in the third immediately succeeding set of parentheses, 2023as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company shall deliver such Settlement Notice to the Trustee, the Conversion Agent, and converting Holders no later than the close of business on the first Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions of any Notes for which the relevant Conversion Date occurs (Ai) during a Redemption Period, in the applicable related Redemption Notice or (Bii) on or after December 1May 15, 20232026, no later than the close of business on the Business Day immediately preceding December 1May 15, 20232026). If the Company does not elect a Settlement Method with respect to any conversion prior to the deadline set forth in the immediately preceding sentence, then the Company shall no longer have the right to elect Cash Settlement or Physical Settlement for such conversion or during such period and the Company shall be deemed to have elected the Default Combination Settlement Method in respect of such conversionits Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice, if provided, Notice shall specify the relevant Settlement Method and, and in the case of an election of Combination Settlement, the applicable relevant Settlement Notice shall indicate the Specified Dollar AmountAmount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes to be converted shall be deemed to be $1,000. Notwithstanding anything to the contrary in the foregoing, the Company shall be permitted to irrevocably elect Physical Settlement in any Certain Distributions Notification and any such election would be applicable to conversions with Conversion Dates that occur after delivery to the Holders of the Certain Distributions Notification until the Certain Distributions Conversion Period End Date. By notice to Holders, the Trustee and the Conversion Agent, the Company may, prior to May 15, 2026, at its option, irrevocably elect to satisfy its Conversion Obligation through Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 for all Conversion Dates occurring subsequent to delivery of such notice and for which another Settlement Method does not otherwise apply or is not otherwise deemed to apply as set forth above. If the Company irrevocably elects Combination Settlement with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above a specific amount, the Company will, after the date of such election, inform Holders converting their Notes, the Trustee and the Conversion Agent (if other than the Trustee) of such Specified Dollar Amount no later than the relevant Settlement Method Election Deadline, or, if the Company does not timely notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) such Specified Dollar Amount will be the specific amount set forth in the election notice or, if no specific amount was set forth in the election notice, such Specified Dollar Amount will be $1,000 per $1,000 principal amount of Notes. Concurrently with providing notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) of the Company’s irrevocable election to satisfy its Conversion Obligation through Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of at least $1,000, the Company will either post its irrevocable election on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the SEC. The irrevocable election will apply to all note conversions on conversion dates occurring subsequent to delivery of such notice; provided, however, that no such election will affect any Settlement Method theretofore elected (or deemed to be elected) with respect to any Note. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the Company’s failure need to so select a Settlement Method or Specified Dollar Amount when so permitted shall not constitute a Default or Event of Default under amend this Indenture or the Notes. By notice , including pursuant to the Holdersprovisions described in Section 10.01(l). However, the Company may change the Default Settlement Method nonetheless choose to any permitted Settlement Method, except it may not change the Default Settlement Method during any Redemption Period (in respect of Notes converted with a Conversion Date occurring during execute such Redemption Period) or on or after December 1, 2023 (in respect of Notes converted with a Conversion Date that occurs on or after December 1, 2023)an amendment at its option.
(iv) The cash, shares of Common Shares Stock or combination of cash and shares of Common Shares Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows follows:
(A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted:
(A) if Physical Settlement applies to such conversion, converted a number of shares of Common Shares Stock equal to the Conversion Rate in effect on the Conversion Date for such (plus cash in lieu of any fractional share of Common Stock issuable upon conversion);
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement applies to such conversionSettlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 25 20 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement applies to such conversionSettlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 25 20 consecutive Trading Days during the related Observation PeriodPeriod (plus cash in lieu of any fractional share of Common Stock issuable upon conversion).
(v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Share, if anyStock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the sameDaily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 13.02(e14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the Applicable Procedures in effect at that time and, if required, pay funds equal to interest the Special Interest payable on the next Special Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h) and, if required, pay all transfer or similar taxes, if any, pursuant to Section 14.02(e) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Shares Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and documents, (4) if required, pay funds equal to interest the Special Interest payable on the next Special Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h) and (5) if required, pay all transfer or similar taxes, if any, pursuant to Section 14.02(e). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 13 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered for conversion by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 14.0215.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 13.03(b14.03(b) and Section 13.07(a14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects to satisfy its Conversion Obligation through Physical Settlement applies(provided that, with respect to any Conversion Date following the Special Interest Record Date immediately preceding the Maturity Date where Physical Settlement applies to the related Conversion, the Company will settle any such Conversion on the Maturity Date), or on the second Business Day immediately following the last Trading Day of the Observation Period, if the Company elects to satisfy its Conversion Obligation through any other Settlement Method appliesMethod. If any shares of Common Shares Stock are due to a converting Holder, the Company shall issue and deliver (or otherwise cause to be delivered) to the Conversion Agent or issued, and deliver to such Holder, or such Holder’s nominee or nominees, the full number of shares of Common Shares Stock to which such Holder shall be entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Shares Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Shares Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 13.0414.04, no adjustment shall be made for dividends on any shares of Common Shares Stock issued upon the conversion of any Note as provided in this Article 1314.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interestSpecial Interest, if any, except as set forth below in this Section 13.02(h), and the Company will not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notesbelow. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interestSpecial Interest, if any, to, but not includingexcluding, the relevant Conversion Date. As a result, accrued and unpaid interestSpecial Interest, if any, to, but not includingexcluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common SharesStock, any accrued and unpaid interest Special Interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Special Interest Record Date but prior to the open of business on the immediately following Special Interest Payment Date, Holders of such Notes as of the close of business on such Regular Special Interest Record Date will receive the full amount of interest payable on such Notes on the corresponding such Special Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of business on any Regular Special Interest Record Date to the open of business on the immediately following Special Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so convertedconverted on the corresponding Special Interest Payment Date (regardless of whether the converting Holder was the Holder of record on the corresponding Special Interest Record Date); provided, however, provided that no such payment shall be required (1) for conversions following the Regular close of business on the Special Interest Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Fundamental Change Repurchase Date that is after a Regular Special Interest Record Date and on or prior to the Business Day immediately following the corresponding Special Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Redemption Date that is after a Regular Special Interest Record Date and on or prior to the Business Day immediately following the corresponding Special Interest Payment Date; Date or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, shall receive the full interest payment due on Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date.
(i) The Person in whose name any Common Shares shall be issuable upon conversion shall be treated as a shareholder of record of such shares as of the close of business on the relevant Conversion Date (if Physical Settlement applies to such conversion) or as of the close of business on the last Trading Day of the relevant Observation Period (if Combination Settlement applies to such conversion), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional Common Share upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Common Share issuable upon conversion based on the Daily VWAP for the relevant Conversion Date, in the case of Physical Settlement, or based on the Daily VWAP for the last Trading Day of the relevant Observation Period, in the case of Combination Settlement. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be issuable upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.Holder
Appears in 2 contracts
Sources: Indenture (Cloudflare, Inc.), Indenture (Cloudflare, Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 13.0214.02, Section 13.03(b14.03(b) and Section 13.07(a14.07(a), upon conversion of any Note, the Company shall satisfy shall, at its Conversion Obligation by paying election, pay or deliveringdeliver, as the case may be, to the converting Holder, in respect full satisfaction of each $1,000 principal amount of Notes being convertedits Conversion Obligation, cash (“Cash Settlement”), shares of the Common Shares, together, if applicable, with cash in lieu of delivering any fractional Common Share in accordance with Section 13.02(j) Stock (“Physical Settlement”), ) or a combination of cash and shares of the Common Shares, together, if applicable, with cash in lieu of delivering any fractional Common Share in accordance with Section 13.02(j) Stock (“Combination Settlement”), at its election, as set forth in this Section 13.02, subject to the requirements of Section 13.0714.02.
(i) All conversions for which the relevant Conversion Date occurs during a Redemption Period shall be settled using the same Settlement Methodon or after January 1, 2022 and all conversions for which the relevant Conversion Date occurs on or after December 1, 2023 the Company’s issuance of a Redemption Notice and prior to the Scheduled Trading Day immediately preceding the related Redemption Date shall be settled using the same Settlement Method.
Method (ii) including the same relative proportion of cash and/or shares of the Common Stock). Except for any conversions for which the relevant Conversion Date occurs during after the Company’s issuance of a Redemption Period Notice, but prior to the Scheduled Trading Day immediately preceding the related Redemption Date, and any conversions for which the relevant Conversion Date occurs on or after December January 1, 20232022, the Company shall use the same Settlement Method (including the same relative proportion of cash and/or shares of the Common Stock) for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates.
(iiiii) If, in respect of any Conversion Date (or any conversion for which the relevant Conversion Date occurs during a Redemption Period on or after December 1, 2023), If the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be)Method, the Company shall deliver notice to Holders through the Conversion Agent (if other than the Trustee) of such Settlement Notice to converting Holders Method the Company has selected no later than the close of business on the second Trading Day immediately following the relevant related Conversion Date (orDate, or in the case of any conversions of any Notes for which the relevant Conversion Date occurs (Ax) during on or after the date of issuance of a Redemption PeriodNotice and prior to the Scheduled Trading Day immediately preceding the related Redemption Date, in the applicable such Redemption Notice or (By) on or after December January 1, 20232022, no later than the close of business on the Business Day immediately preceding December January 1, 20232022. If the Company does not timely elect a Settlement Method Method, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to any conversion prior to the deadline set forth in the immediately preceding sentence, then that Conversion Date and the Company shall be deemed to have elected the Default Settlement Method in respect of such conversion. Such Settlement Notice, if provided, shall specify the relevant Settlement Method and, in the case of Combination Settlement, the applicable Specified Dollar Amount. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes to be converted in such Settlement NoticeObligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. If the Company has timely elected Combination Settlement in respect of any conversion but does not timely notify the converting Holders of the Specified Dollar Amount per $1,000 principal amount of Notes, or the Company is deemed to have elected Combination Settlement, the Specified Dollar Amount shall be deemed to be $1,000. For the avoidance of doubt, the Company’s failure to so select a Settlement Method or Specified Dollar Amount when so permitted shall not constitute a Default or Event of Default under this Indenture or the Notes. By notice to the Holders, the Company may change the Default Settlement Method to any permitted Settlement Method, except it may not change the Default Settlement Method during any Redemption Period (in respect of Notes converted with a Conversion Date occurring during such Redemption Period) or on or after December 1, 2023 (in respect of Notes converted with a Conversion Date that occurs on or after December 1, 2023).
(iviii) The cash, shares of Common Shares Stock or combination of cash and shares of Common Shares Stock payable or deliverable by the Company in respect of any conversion of Notes (the “Settlement Amount”) shall be computed by the Company as follows follows:
(A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted:
(A) if Physical Settlement applies to such conversion, converted a number of shares of Common Shares Stock equal to the Conversion Rate in effect on the Conversion Date for such (plus cash in lieu of any fractional share of Common Stock issuable upon conversion);
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement applies to such conversionSettlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 25 30 consecutive VWAP Trading Days during the related relevant Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement applies to such conversionSettlement, the Company shall pay or and deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, converted a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 25 30 consecutive VWAP Trading Days during the related Observation Period.
Period (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of plus cash payable in lieu of delivering any fractional share of Common Share, if any, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the same. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 13.02(eStock issuable upon conversion), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the Applicable Procedures and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any Common Shares to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 13 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 14.02. If more than one Note shall be surrendered for conversion at any one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted therebyhereby) so surrendered.
(iv) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last VWAP Trading Day of the related Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and, if applicable, the amount of cash payable in lieu of any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and, if applicable, the amount of cash payable in lieu of fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(i) To convert a beneficial interest in a Global Note (which conversion is irrevocable), the holder of such beneficial interest must:
(A) comply with the Applicable Procedures;
(B) if required, pay funds equal to all documentary, stamp or similar issue or transfer tax owed as set forth in Section 14.02(d) and Section 14.02(e); and
(C) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(g); and
(ii) To convert a Certificated Note, the Holder must:
(A) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile thereof) (a “Notice of Conversion”) and such Note to the Conversion Agent;
(B) if required, furnish appropriate endorsements and transfer documents;
(C) if required, pay funds equal to all documentary, stamp or similar issue or transfer tax owed as set forth in Section 14.02(d) and Section 14.02(e); and
(D) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(g). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion or, if notice on such date is not feasible given the nature of the conversion, promptly thereafter. If a Holder has already delivered a Fundamental Change Repurchase Notice with respect to a Note, such Holder may not surrender such Note for conversion until such Holder has validly withdrawn such Fundamental Change Repurchase Notice (or, in the case of a Global Note, has complied with the Applicable Procedures with respect to such a withdrawal) in accordance with the terms of Section 15.03. If a Holder has already delivered a Fundamental Change Repurchase Notice, such Holder’s right to withdraw such notice and convert the Notes that are subject to repurchase will terminate at the close of business on the Business Day immediately preceding the relevant Fundamental Change Repurchase Date.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (bSection 14.02(b) above. Except as set forth in Subject to the provisions of Section 13.03(b14.03(b) and Section 13.07(a14.07(a), the Company shall pay or deliver, as the case may be, the consideration Settlement Amount due in respect of the Conversion Obligation on on:
(i) the second third Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement applies, or on Settlement; or
(ii) the second third Business Day immediately following the last VWAP Trading Day of the relevant Observation Period, if any other the Company elects Cash Settlement Method appliesor if the Company elects or is deemed to elect Combination Settlement. If any shares of Common Shares Stock are due to a converting HolderHolders, the Company shall issue and deliver (or otherwise cause to be delivered) to the Conversion Agent or issued, and deliver to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary, as the case may be, for the full number of shares of Common Shares Stock to which such Holder shall be entitled, in book-entry format through the Depositary, entitled in satisfaction of the Company’s Conversion Obligation.
(d) In case any Certificated Note shall be surrendered for partial conversion, in $1,000 principal amount or an integral multiple thereof, the Company shall execute and upon receipt of a Company Order, the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue issuance of any shares of Common Shares Stock upon conversionconversion of such Note, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Shares Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 13.04, no adjustment shall be made for dividends on any Common Shares issued upon the conversion of any Note as provided in this Article 13.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian of the Global Note at the direction of the Trustee, shall make a notation on such Global Note in the books and records of the Trustee and Depositary as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(hg) Upon conversionconversion of a Note, a the converting Holder shall not receive any separate cash payment for representing accrued and unpaid interest, if any, except as set forth below in this Section 13.02(h), and the Company will not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notesparagraph below. The Company’s settlement payment or delivery, as the case may be, of the full Conversion Obligation Settlement Amount upon conversion of any Note shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelledcanceled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common SharesStock, accrued and unpaid interest will shall be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoingimmediately preceding paragraph, if Notes are converted after the close of business on a Regular Record Date for the payment of interest, but prior to the open of business on the immediately following Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will shall receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so convertedconverted on the corresponding Interest Payment Date (regardless of whether the converting Holder was the Holder of record on the corresponding Regular Record Date); provided, however, provided that no such payment shall need be required made:
(1i) if the Notes are surrendered for conversions conversion following the Regular Record Date immediately preceding the Maturity Date; ;
(2ii) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business second Scheduled Trading Day immediately following the corresponding Interest Payment Date; ;
(3iii) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or or
(4iv) to the extent of any Defaulted Amountsoverdue interest, if any Defaulted Amounts overdue interest exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, any Redemption Date as described in clause (ii) above and any Fundamental Change Repurchase Date as described in clause (iii) above shall receive and retain the full interest payment due on the Maturity Date in cash or other applicable Interest Payment Date regardless of whether their Notes have been converted following such Regular Record Date.
(ih) The Person in whose name any shares of Common Shares shall be issuable Stock delivered upon conversion is registered shall be treated as a shareholder become the holder of record of such shares as of the close of business on (i) the relevant Conversion Date (if the Company elects Physical Settlement applies to such conversionor (ii) or as of the close of business on the last VWAP Trading Day of the relevant Observation Period (if the Company elects or is deemed to elect Combination Settlement applies to such conversion), as the case may beSettlement. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion; provided that (a) the converting Holder shall have the right to receive the Settlement Amount due upon conversion and (b) in the case of a conversion between a Regular Record Date and the corresponding Interest Payment Date, the Holder of record as of the close of business on such Regular Record Date shall have the right to receive the interest payable on such Interest Payment Date, in accordance with Section 14.02(g).
(ji) The Company shall not issue any fractional share of Common Share Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Share Stock issuable upon conversion in an amount based on (i) the Daily VWAP for on the relevant Conversion Date, in Date if the case of Company elects Physical Settlement, Settlement or based on (ii) the Daily VWAP for on the last VWAP Trading Day of the relevant Observation Period, in Period if the case of Company elects or is deemed to elect Combination Settlement. For each Note surrendered for conversion, if the Company has elected (or is deemed to have electedelect) Combination Settlement, the full number of shares that shall be issuable issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and and, if applicable, any fractional shares share remaining after such computation shall be paid in cash.
Appears in 2 contracts
Sources: Indenture (Open Text Corp), Indenture (Carbonite Inc)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 13.0214.02, Section 13.03(b14.03(b) and Section 13.07(a14.07(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying pay or deliveringdeliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Physical Settlement”), ) or a combination of cash and shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Combination Settlement”), at its election, as set forth in this Section 13.02, subject to the requirements of Section 13.0714.02.
(i) All conversions for which the relevant Conversion Date occurs during a Redemption Period shall be settled using the same Settlement Methodon or after April 15, 2023 and all conversions for which the relevant Conversion Date occurs on or after December 1, 2023 during a Redemption Period shall be settled using the same Settlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs during a Redemption Period Period, and any conversions for which the relevant Conversion Date occurs on or after December 1April 15, 2023, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates.
(iii) If, in respect of any Conversion Date (or in the case of any conversion for which the relevant Conversion Date occurs conversions occurring (x) on or after April 15, 2023 or (y) during a Redemption Period on or after December 1, 2023Period), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company Company, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions of any Notes for which the relevant Conversion Date occurs occurring (Ax) during a Redemption Period, in the applicable such Redemption Notice or (By) on or after December 1April 15, 2023, no later than the close of business on the Business Day immediately preceding December 1April 15, 2023). If the Company does not elect a Settlement Method with respect to any conversion prior to the deadline set forth in the immediately preceding sentence, then the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected the Default Combination Settlement Method in respect of such conversionits Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice, if provided, Notice shall specify the relevant Settlement Method and, and in the case of an election of Combination Settlement, the applicable relevant Settlement Notice shall indicate the Specified Dollar AmountAmount per $1,000 principal amount of Notes. If the Company timely delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. For the avoidance of doubt, the Company’s failure to so select a Settlement Method or Specified Dollar Amount when so permitted shall not constitute a Default or Event of Default under this Indenture or the Notes. By notice to the Holders, the Company may change may, prior to April 15, 2023, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Default Notes through Combination Settlement Method to any permitted Settlement Method, except it may not change the Default Settlement Method during any Redemption Period (in respect with a Specified Dollar Amount per $1,000 principal amount of Notes converted with a of $1,000 for all Conversion Date Dates occurring during subsequent to delivery of such Redemption Period) or on or after December 1, 2023 (in respect of Notes converted with a Conversion Date that occurs on or after December 1, 2023)notice.
(iv) The cash, shares of Common Shares Stock or combination of cash and shares of Common Shares Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows follows:
(A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted:
(A) if Physical Settlement applies to such conversion, converted a number of shares of Common Shares Stock equal to the Conversion Rate in effect on the Conversion Date for such conversion;Date;
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement applies to such conversionSettlement, the Company shall pay pay, or cause to be paid, to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 25 40 consecutive Trading Days during the related Observation Period; Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement applies to such conversionSettlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 25 40 consecutive Trading Days during the related Observation Period.
(v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Share, if anyStock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the sameDaily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 13.02(e14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the Applicable Procedures procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a notice pursuant to the applicable procedure procedures of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Shares Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 13 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered for conversion by a Holder thereof if such Holder ▇▇▇▇▇▇ has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 14.0215.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 13.03(b14.03(b) and Section 13.07(a14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or, in the case of any other Settlement appliesMethod, or on the second Business Day immediately following the last Trading Day of the Observation Period, if any other Settlement Method applies. If any shares of Common Shares Stock are due to a converting Holder, the Company shall issue or cause to be issued, and deliver (or otherwise cause to be deliveredif applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of shares of Common Shares Stock to which such Holder shall be entitled, in certificate form or in book-entry format through the Depositaryformat, in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay pay, or cause to be paid, any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Shares Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Shares Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 13.0414.04, no adjustment shall be made for dividends on any shares of Common Shares Stock issued upon the conversion of any Note as provided in this Article 1314.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below in this Section 13.02(h), and the Company will not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notesbelow. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common SharesStock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided, however, converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, Date shall receive the full interest payment due on the Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date.
(i) The Person in whose name any the shares of Common Shares Stock shall be issuable upon conversion shall be treated as a shareholder stockholder of record of such shares as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement applies to such conversionSettlement) or as of the close of business on the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement applies to such conversionSettlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional share of Common Share Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Share Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date, Date (in the case of Physical Settlement, ) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period, Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be issuable issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 2 contracts
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 13.0214.02, Section 13.03(b14.03(b) and Section 13.07(a14.07(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying pay or deliveringdeliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Physical Settlement”), ) or a combination of cash and shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Combination Settlement”), at its election, as set forth in this Section 13.02, subject to the requirements of Section 13.0714.02.
(i) All conversions (x) for which the relevant Conversion Date occurs during after the Company’s issuance of a Redemption Period shall be settled using Notice with respect to the same Settlement Method, Notes and all conversions prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date (y) for which the relevant Conversion Date occurs on or after December March 1, 2023 2031 and (z) following the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(iii)(B), in each case shall be settled using the same Settlement Method.
(ii) Except (w) for any conversions for which the relevant Conversion Date occurs during after the Company’s issuance of a Redemption Period and Notice with respect to the Notes but prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date, (x) for any conversions for which the relevant Conversion Date occurs on or after December March 1, 20232031, (y) to the extent the Company elects Physical Settlement to apply pursuant to Section 14.01(b)(ii) and (z) for any conversions following the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(iii)(B), in each case the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates.
(iii) If(A) Subject to the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(iii)(B), if, in respect of any Conversion Date (or any conversion for which one of the relevant Conversion Date occurs during a Redemption Period on or after December 1periods described in the third immediately succeeding set of parentheses, 2023as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company Company, shall deliver such Settlement Notice to the Trustee and the Conversion Agent (if other than the Trustee) and the converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions of any Notes (x) for which the relevant Conversion Date occurs (A) during on or after the date of issuance of a Redemption PeriodNotice with respect to the Notes and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date, in the applicable such Redemption Notice or (B) on or after December March 1, 20232031, no later than the close of business on the Business Day immediately preceding December March 1, 20232031 or (y) for which the Company has irrevocably elected Physical Settlement pursuant to Section 14.01(b)(ii), in the related notice described therein). If the Company does not elect a Settlement Method with respect to any conversion prior to the deadline set forth in the immediately preceding sentence, then the Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to the relevant Conversion Date (or such period, as the case may be) and the Company shall be deemed to have elected the Default Combination Settlement Method in respect of such conversionits Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice, if provided, Notice shall specify the relevant Settlement Method and, and in the case of an election of Combination Settlement, the applicable relevant Settlement Notice shall indicate the Specified Dollar AmountAmount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. For the avoidance of doubt, the Company’s failure to so select a Settlement Method or Specified Dollar Amount when so permitted shall not constitute a Default or Event of Default under this Indenture or the Notes. By notice to the Holders, the Company may change the Default Settlement Method to any permitted Settlement Method, except it may not change the Default Settlement Method during any Redemption Period (in respect of Notes converted with a Conversion Date occurring during such Redemption Period) or on or after December 1, 2023 (in respect of Notes converted with a Conversion Date that occurs on or after December 1, 2023).
(iv) The cash, Common Shares or combination of cash and Common Shares in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows in respect of each $1,000 principal amount of Notes being converted:
(A) if Physical Settlement applies to such conversion, a number of Common Shares equal to the Conversion Rate in effect on the Conversion Date for such conversion;
(B) if Cash Settlement applies to such conversion, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 25 consecutive Trading Days during the related Observation Period; and
(C) if Combination Settlement applies to such conversion, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 25 consecutive Trading Days during the related Observation Period.
(v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional Common Share, if any, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the same. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 13.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the Applicable Procedures and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any Common Shares to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 13 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 14.02. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 13.03(b) and Section 13.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if Physical Settlement applies, or on the second Business Day immediately following the last Trading Day of the Observation Period, if any other Settlement Method applies. If any Common Shares are due to a converting Holder, the Company shall issue and deliver (or otherwise cause to be delivered) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of Common Shares to which such Holder shall be entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any Common Shares upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the Common Shares being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 13.04, no adjustment shall be made for dividends on any Common Shares issued upon the conversion of any Note as provided in this Article 13.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below in this Section 13.02(h), and the Company will not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and Common Shares, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided, however, that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, shall receive the full interest payment due on Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date.
(i) The Person in whose name any Common Shares shall be issuable upon conversion shall be treated as a shareholder of record of such shares as of the close of business on the relevant Conversion Date (if Physical Settlement applies to such conversion) or as of the close of business on the last Trading Day of the relevant Observation Period (if Combination Settlement applies to such conversion), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional Common Share upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Common Share issuable upon conversion based on the Daily VWAP for the relevant Conversion Date, in the case of Physical Settlement, or based on the Daily VWAP for the last Trading Day of the relevant Observation Period, in the case of Combination Settlement. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be issuable upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 2 contracts
Sources: Indenture (MARA Holdings, Inc.), Indenture (Marathon Digital Holdings, Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 13.0214.02, Section 13.03(b14.03(b) and Section 13.07(a14.07(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying pay or deliveringdeliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Physical Settlement”), ) or a combination of cash and shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Combination Settlement”), at its election, as set forth in this Section 13.02, subject to the requirements of Section 13.0714.02.
(i) All conversions for which the relevant Conversion Date occurs during after the Company’s issuance of a Notice of Redemption Period shall be settled using with respect to the same Settlement MethodNotes and prior to the related Redemption Date, and all conversions for which the relevant Conversion Date occurs on or after December April 1, 2023 2030 shall be settled using the same Settlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs during after the Company’s issuance of a Notice of Redemption Period with respect to the Notes but prior to the related Redemption Date, and any conversions for which the relevant Conversion Date occurs on or after December April 1, 20232030, the Company shall use the same Settlement Method for all conversions with occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates.
(iii) If, in respect of any Conversion Date (or any conversion conversions for which the relevant Conversion Date occurs (x) during a Redemption Period Period, in such Notice of Redemption or (y) on or after December April 1, 20232030), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company Company, with a copy to the Trustee and the Conversion Agent (if other than the Trustee), shall deliver such Settlement Notice to converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions of any Notes for which the relevant Conversion Date occurs (Ax) during a Redemption Period, in the applicable such Notice of Redemption Notice or (By) on or after December April 1, 20232030, no later than the close of business on the Business Scheduled Trading Day immediately preceding December April 1, 20232030). If the Company does not elect a Settlement Method with respect to any conversion prior to the deadline set forth in the immediately preceding sentence, then the Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to such conversion or during such period and the Company shall be deemed to have elected the Default Combination Settlement Method in respect of such conversionits Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice, if provided, Notice shall specify the relevant Settlement Method and, and in the case of an election of Combination Settlement, the applicable relevant Settlement Notice shall indicate the Specified Dollar AmountAmount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. For the avoidance of doubt, the Company’s failure to so select a Settlement Method or Specified Dollar Amount when so permitted shall not constitute a Default or Event of Default under this Indenture or the Notes. By notice to the Holders, the Company may change the Default Settlement Method to any permitted Settlement Method, except it may not change the Default Settlement Method during any Redemption Period (in respect of Notes converted with a Conversion Date occurring during such Redemption Period) or on or after December 1, 2023 (in respect of Notes converted with a Conversion Date that occurs on or after December 1, 2023).
(iv) The cash, shares of Common Shares Stock or combination of cash and shares of Common Shares Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows follows:
(A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted:
(A) if Physical Settlement applies to such conversion, converted a number of shares of Common Shares Stock equal to the Conversion Rate in effect on the Conversion Date for such conversionDate;
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement applies to such conversionSettlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 25 50 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement applies to such conversionSettlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 25 50 consecutive Trading Days during the related Observation Period.
(v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Share, if anyStock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the sameDaily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 13.02(e14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth aboveherein, such Holder shall (i) in the case of a Global Note, comply with the Applicable Procedures procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF facsimile or other electronic transmission thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Shares Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h). The Trustee (and and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 13 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered for conversion by a Holder thereof if such Holder ▇▇▇▇▇▇ has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 14.0215.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 13.03(b14.03(b) and Section 13.07(a14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement applies(provided that, with respect to any Conversion Date following the Regular Record Date immediately preceding the Maturity Date where Physical Settlement applies to the related conversion, the Company shall settle any such conversion on the Maturity Date), or on the second Business Day immediately following the last Trading Day of the relevant Observation Period, if in the case of any other Settlement Method appliesMethod. If any shares of Common Shares Stock are due to a converting HolderHolders, the Company shall issue and deliver (or otherwise cause to be delivered) issued, and deliver to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common Shares Stock to which such Holder shall be entitled, in book-entry format through the Depositary, entitled in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Shares Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver or refuse to instruct the stock transfer agent to deliver the certificates representing the shares of Common Shares Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder ▇▇▇▇▇▇ in accordance with the immediately preceding sentence.
(f) Except as provided in Section 13.0414.04, no adjustment shall be made for dividends on any shares of Common Shares Stock issued upon the conversion of any Note as provided in this Article 1314.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below in this Section 13.02(h), and the Company will not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notesbelow. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelledcanceled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common SharesStock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided, however, provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, Date or any Fundamental Change Repurchase Date as described in the immediately preceding sentence shall receive the full interest payment due on the Maturity Date in cash or other applicable Interest Payment Date regardless of whether their Notes have been converted following such Regular Record Date.
(i) The Person in whose name any the shares of Common Shares Stock shall be issuable upon conversion shall be treated as a shareholder stockholder of record of such shares as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement applies to such conversionSettlement) or as of the close of business on the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement applies to such conversionSettlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional share of Common Share Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Share Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date, Date (in the case of Physical Settlement, ) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period, Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be issuable issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 2 contracts
Sources: Indenture (PROS Holdings, Inc.), Indenture (PROS Holdings, Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 13.0214.02, Section 13.03(b14.03(b) and Section 13.07(a14.07(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying or delivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), Common Shares, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Shares in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Physical Settlement”), ) or a combination of cash and Common Shares, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Shares in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Combination Settlement”), at its election, as set forth in this Section 13.02, subject to the requirements of Section 13.0714.02.
(i) All conversions for which the relevant Conversion Date occurs during after the Company’s issuance of a Notice of Redemption Period shall be settled using with respect to the same Settlement MethodNotes and prior to the related Redemption Date, and all conversions for which the relevant Conversion Date occurs on or after December 1January 15, 2023 2023, shall be settled using the same Settlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs during after the Company’s issuance of a Notice of Redemption Period with respect to the Notes but prior to the related Redemption Date, and any conversions for which the relevant Conversion Date occurs on or after December 1January 15, 2023, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates.
(iii) If, in respect of any Conversion Date (or any conversion conversions for which the relevant Conversion Date occurs during a Redemption Period Period, or for which the relevant Conversion Date occurs on or after December 1January 15, 2023), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company Company, through the U.S. Trustee, shall deliver such Settlement Notice in writing to converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions of any Notes for which the relevant Conversion Date occurs (Ax) during a Redemption Period, in the applicable Redemption such Notice of Redemption, or (By) on or after December 1January 15, 2023, no later than the close of business on the Business Day immediately preceding December 1January 15, 2023). If the Company does not elect a Settlement Method with respect to any conversion a Conversion Date prior to the deadline set forth in the immediately preceding sentence, then the Company shall no longer have the right to elect Cash Settlement or Combination Settlement with respect to such Conversion Date, and the Company shall be deemed to have elected the Default Physical Settlement Method in respect of such conversionits Conversion Obligation. Such Settlement Notice, if provided, Notice shall specify the relevant Settlement Method and, and in the case of an election of Combination Settlement, the applicable relevant Settlement Notice shall indicate the Specified Dollar Amount. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes to be converted in such Settlement NoticeAmount, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. For the avoidance of doubt, the Company’s failure to so select a Settlement Method or Specified Dollar Amount when so permitted shall not constitute a Default or Event of Default under this Indenture or the Notes. By notice to the Holders, the Company may change the Default Settlement Method to any permitted Settlement Method, except it may not change the Default Settlement Method during any Redemption Period (in respect of Notes converted with a Conversion Date occurring during such Redemption Period) or on or after December 1, 2023 (in respect of Notes converted with a Conversion Date that occurs on or after December 1, 2023).
(iv) The cash, Common Shares or combination of cash and Common Shares in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows follows:
(A) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted:
(A) if Physical Settlement applies to such conversion, converted a number of Common Shares equal to the Conversion Rate in effect on the Conversion Date for such conversionDate;
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement applies to such conversionSettlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 25 20 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement applies to such conversionSettlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 25 20 consecutive Trading Days during the related Observation Period.
(v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Share, if anyShares, the Company shall notify the U.S. Trustee and the Conversion Agent (if other than the U.S. Trustee) in writing of the sameDaily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional Common Shares. The U.S. Trustee and the Conversion Agent (if other than the U.S. Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 13.02(e14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the Applicable Procedures applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h) and (ii) in the case of a Physical Definitive Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any Common Shares to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h). The U.S. Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 13 14 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 14.0215.03(a). If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (bi) above. Except as set forth in Section 13.03(b14.03(b) and Section 13.07(a14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement appliesSettlement, or on the second Business Day immediately following the last Trading Day of the Observation Period, if in the case of any other Settlement Method appliesMethod. If any Common Shares are due to a converting Holder, the Company shall issue or cause to be issued, and deliver (or otherwise cause to be deliveredif applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of Common Shares to which such Holder shall be entitled, in book-entry format through the Depositary, in the case of Global Notes, or in certificated form, in the case of Definitive Notes, in each case, in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the U.S. Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or U.S. Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue issuance of any Common Shares upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the Common Shares being issued in a name other than the Holder’s name until the U.S. Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 13.0414.04, no adjustment shall be made for dividends on any Common Shares issued upon the conversion of any Note as provided in this Article 1314.
(g) Upon the conversion of an interest in a Global Note, the U.S. Trustee, or the Custodian at the direction of the U.S. Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the U.S. Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the U.S. Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below in this Section 13.02(h), and the Company will not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notesbelow. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and Common Shares, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided, however, provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, Date shall receive the full interest payment due on the Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date.
(i) The Person in whose name any the Common Shares shall be issuable upon conversion shall be treated as a shareholder stockholder of record of such shares as of the close of business on the relevant Conversion Date (if the Company elects (or is deemed to have elected) to satisfy the related Conversion Obligation by Physical Settlement applies to such conversionSettlement) or as of the close of business on the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement applies to such conversionSettlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional share of Common Share Shares upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Share Shares issuable upon conversion based on the Daily VWAP for the relevant Conversion Date, Date (in the case of Physical Settlement, ) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period, Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares Common Shares that shall be issuable issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 2 contracts
Sources: Indenture (Canopy Growth Corp), Indenture (Canopy Growth Corp)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 13.0214.02, Section 13.03(b14.03(b) and Section 13.07(a14.07(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying pay or deliveringdeliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Physical Settlement”), ) or a combination of cash and shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Combination Settlement”), at its election, as set forth in this Section 13.02, subject to the requirements of Section 13.0714.02.
(i) All conversions for which the relevant Conversion Date occurs during a Redemption Period shall be settled using the same Settlement Method, and all conversions of Notes for which the relevant Conversion Date occurs on or after December 1June 15, 2023 2027, and all conversions of Notes during a Redemption Period of Notes called for redemption (or deemed called for redemption pursuant to Section 14.01(b)(ii)), shall be settled using the same Settlement Method.
(ii) Except for any conversions of Notes called for redemption (or deemed called for redemption pursuant to Section 14.01(b)(ii)) for which the relevant Conversion Date occurs during a the related Redemption Period and any conversions for which the relevant Conversion Date occurs on or after December 1June 15, 20232027, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates.
(iii) If, in respect of any Conversion Date (or any conversion for which the relevant Conversion Date occurs during a Redemption Period on or after December 1period described in the fourth immediately succeeding set of parentheses, 2023as the case may be), the Company elects to deliver a written notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company shall deliver such Settlement Notice to the Trustee, the Conversion Agent (if other than the Trustee) and converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions of any Notes (x) called for redemption (or deemed called for redemption pursuant to Section 14.01(b)(ii)) for which the relevant Conversion Date occurs (A) during a the related Redemption Period, in such Redemption Notice, (y) for which the applicable Redemption Notice or (B) relevant Conversion Date occurs on or after December 1June 15, 20232027, no later than June 15, 2027 or (z) for which the close of business on Company has irrevocably elected Physical Settlement pursuant to Section 14.01(b)(iii), in the Business Day immediately preceding December 1related Certain Distributions Notification) (in each case, 2023the “Settlement Method Election Deadline”). If the Company does not elect a Settlement Method with respect to any conversion prior to the deadline set forth in the immediately preceding sentence, then the Company shall no longer have the right to elect a Settlement Method with respect to any conversion on such Conversion Date or during such period, and the Company shall be deemed to have elected the Default Settlement Method in with respect of to such conversion. Such Any Settlement Notice, if provided, Notice shall specify the relevant Settlement Method and, and in the case of an election of Combination Settlement, the applicable Specified Dollar Amount. If the Company delivers a relevant Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not shall indicate a Specified Dollar Amount per $1,000 principal amount of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall Notes. If the Company timely elects Combination Settlement (or is deemed to have elected Combination Settlement) with respect to a conversion but does not timely notify the converting Holder, the Trustee and the Conversion Agent (if other than the Trustee) of the applicable Specified Dollar Amount, then the Specified Dollar Amount for such conversion will be deemed to be $1,0001,000 per $1,000 principal amount of Notes. For the avoidance of doubt, the Company’s failure to so select timely elect a Settlement Method or specify the applicable Specified Dollar Amount when so permitted shall not constitute a Default or Event of Default default under this Indenture or the NotesIndenture. By The Company may, by notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) prior to June 15, 2027, irrevocably fix the Settlement Method, to any Settlement Method that the Company may is then permitted to elect, including Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 or with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above any specific amount set forth in such election notice. Concurrently with providing notice to all Holders of an election to change the Default Settlement Method to any permitted or irrevocably fix the Settlement Method, except it may not change the Company shall promptly either post an announcement on its website or issue a report on Form 8-K (or any successor form) disclosing such Default Settlement Method or irrevocably fixed Settlement Method. If the Company changes the Default Settlement Method during any Redemption Period (or elects to irrevocably fix the Settlement Method, in respect either case, to Combination Settlement with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes converted at or above a specified amount, the Company will, after the date of such change or election, as the case may be, inform Holders converting their Notes of such Specified Dollar Amount no later than the relevant Settlement Method Election Deadline, or, if the Company does not timely notify Holders, such Specified Dollar Amount will be the specific amount set forth in the change or election notice or, if no specific amount was set forth in the change or election notice, such Specified Dollar Amount shall be $1,000 per $1,000 principal amount of Notes. A change in the Default Settlement Method or an irrevocable election shall apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such notice; provided, however, that no such change in the Default Settlement Method or irrevocable election shall affect any Settlement Method theretofore elected (or deemed to be elected) with a Conversion Date occurring during respect to any conversion. For the avoidance of doubt, such Redemption Period) an irrevocable election, if made, shall be effective without the need to amend this Indenture or on or after December 1the Notes, 2023 (including pursuant to the provisions described in respect of Notes converted with a Conversion Date that occurs on or after December 1Section 10.01(l). However, 2023)the Company may nonetheless choose to execute such an amendment at the Company’s option.
(iv) The cash, shares of Common Shares Stock or combination of cash and shares of Common Shares Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows follows:
(A) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted:
(A) if Physical Settlement applies to such conversion, converted a number of shares of Common Shares Stock equal to the Conversion Rate in effect on the Conversion Date for such (plus cash in lieu of any fractional share of Common Stock issuable upon conversion);
(B) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement applies to such conversionSettlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 25 20 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement applies to such conversionSettlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 25 20 consecutive Trading Days during the related Observation PeriodPeriod (plus cash in lieu of any fractional share of Common Stock issuable upon conversion).
(v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Share, if anyStock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) in writing of the sameDaily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 13.02(e14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the Applicable Procedures procedures of the Depositary in effect at that time and, if required, pay funds equal to the interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h) and, if required, pay all transfer or similar taxes, if any, pursuant to Section 14.02(e) and (ii) in the case of a Physical Note (1) complete, manually or electronically sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Shares Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and documents, (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h) and (5) if required, pay all transfer or similar taxes, if any, pursuant to Section 14.02(e). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 13 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered for conversion by a Holder thereof if such Holder ▇▇▇▇▇▇ has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 14.0215.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 13.03(b14.03(b) and Section 13.07(a14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects to satisfy its Conversion Obligation through Physical Settlement applies(provided that, with respect to any Conversion Date following the Regular Record Date immediately preceding the Maturity Date where Physical Settlement applies to the related conversion, the Company will settle any such conversion on the Maturity Date (or, if the Maturity Date is not a Business Day, the next Business Day), and, for purposes of calculating the consideration due upon such conversion, the Conversion Date thereof will be deemed to occur on the second Scheduled Trading Day preceding the Maturity Date), or on the second Business Day immediately following the last Trading Day of the Observation Period, if the Company elects to satisfy its Conversion Obligation through any other Settlement Method appliesMethod. If any shares of Common Shares Stock are due to a converting Holder, the Company shall issue or cause to be issued, and deliver (or otherwise cause to be deliveredif applicable) through its common stock transfer agent to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of shares of Common Shares Stock to which such Holder shall be entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Shares Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Shares Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 13.0414.04, no adjustment shall be made for dividends on any shares of Common Shares Stock issued upon the conversion of any Note as provided in this Article 1314.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below in this Section 13.02(h), and the Company will not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notesbelow. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common SharesStock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date but prior to the open of business on the immediately following Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes (to, but not including, such Interest Payment Date) on the corresponding such Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided, however, that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and converted on or prior to the Business Day immediately following the corresponding Interest Payment Date; Date (3) if regardless of whether the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to converting Holder was the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders Holder of record on the Regular Record Date immediately preceding the Maturity Date, shall receive the full interest payment due on Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date.
(i) The Person in whose name any Common Shares shall be issuable upon conversion shall be treated as a shareholder of record of such shares as of the close of business on the relevant Conversion Date (if Physical Settlement applies to such conversion) or as of the close of business on the last Trading Day of the relevant Observation Period (if Combination Settlement applies to such conversion), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional Common Share upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Common Share issuable upon conversion based on the Daily VWAP for the relevant Conversion Date, in the case of Physical Settlement, or based on the Daily VWAP for the last Trading Day of the relevant Observation Period, in the case of Combination Settlement. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be issuable upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.corresponding Regu
Appears in 2 contracts
Sources: Indenture (Alnylam Pharmaceuticals, Inc.), Indenture (Alnylam Pharmaceuticals, Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 13.0214.02, Section 13.03(b14.03(b) and Section 13.07(a14.07(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying pay or deliveringdeliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Physical Settlement”), ) or a combination of cash and shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Combination Settlement”), at its election, as set forth in this Section 13.02, subject to the requirements of Section 13.0714.02.
(i) All conversions (x) for which the relevant Conversion Date occurs during after the Company’s issuance of a Redemption Period shall be settled using Notice with respect to the same Settlement Method, Notes and all conversions prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date (y) for which the relevant Conversion Date occurs on or after December June 1, 2023 2030 and (z) following the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(iii)(B), in each case shall be settled using the same Settlement Method.
(ii) Except (w) for any conversions for which the relevant Conversion Date occurs during a the related Redemption Period and Period, (x) for any conversions for which the relevant Conversion Date occurs on or after December June 1, 20232030, (y) to the extent the Company elects Physical Settlement to apply pursuant to Section 14.01(b)(ii) and (z) for any conversions following the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(iii)(B), in each case the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates.
(iii) If(A) Subject to the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(iii)(B), if, in respect of any Conversion Date (or any conversion conversions of Called Notes for which the relevant Conversion Date occurs during a the related Redemption Period Period, or for which the relevant Conversion Date occurs on or after December September 1, 20232030 or for which the Company has irrevocably elected Physical Settlement pursuant to Section 14.01(b)(ii) in a notice as described in such Section), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company Company, shall deliver such Settlement Notice to the Trustee, the Conversion Agent and the converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions of any Notes (x) for which the relevant Conversion Date occurs (A) during a the Redemption Period, in the applicable Redemption Notice Period or (B) on or after December June 1, 20232030, no later than the close of business on the Business Day immediately preceding December June 1, 20232030 or (y) for which the Company has irrevocably elected Physical Settlement pursuant to Section 14.01(b)(ii), in the related notice described therein). If the Company does not elect a Settlement Method with respect to any conversion prior to the deadline set forth in the immediately preceding sentence, then the Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to the relevant Conversion Date (or such period, as the case may be) and the Company shall be deemed to have elected the Default Combination Settlement Method in respect of such conversionits Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice, if provided, Notice shall specify the relevant Settlement Method and, and in the case of an election of Combination Settlement, the applicable relevant Settlement Notice shall indicate the Specified Dollar AmountAmount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000.
(A) By notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company may prior to the close of business on the Scheduled Trading Day immediately preceding June 1, 2030, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through any Settlement Method that the Company is then permitted to elect, including Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of at least $1,000 for all Conversion Dates occurring subsequent to the delivery of such notice and for which another Settlement Method does not otherwise apply. If the Company irrevocably elects Combination Settlement with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above a specific amount, the Company shall, after the date of such election, inform Holders converting their Notes, the Trustee and the Conversion Agent (if other than the Trustee) in writing of such Specified Dollar Amount no later than the close of business on the Trading Day immediately following the relevant Conversion Date, or, if the Company does not timely notify Holders, such Specified Dollar Amount will be the specific amount set forth in the election notice or, if no specific amount was set forth in the election notice, such Specified Dollar Amount will be $1,000 per $1,000 principal amount of Notes. Such irrevocable election shall apply for all conversions of Notes with Conversion Dates occurring subsequent to delivery of such notice; provided, however, that no such election will affect any Settlement Method theretofore elected (or deemed to be elected) with respect to any Note. For the avoidance of doubt, such an irrevocable election, if made by the Company’s failure , will be effective without the need to so select a Settlement Method or Specified Dollar Amount when so permitted shall not constitute a Default or Event of Default under amend this Indenture or the Notes, including pursuant to Section 10.01(m). By However, the Company may nonetheless choose to execute such an amendment at its option. If the Company irrevocably fixes the Settlement Method pursuant to the provisions set forth in this paragraph, then, concurrently with providing notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) of such election, the Company may change shall either post the Default fixed Settlement Method on the Company’s website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission (and make such determination of such Specified Dollar Amount on or prior to any permitted Settlement Method, except it may not change the Default Settlement Method during any Redemption Period (dates set forth above in respect of Notes converted with a Conversion Date occurring during Combination Settlement as if an irrevocable election had not otherwise occurred, or if the Company does not make such Redemption Period) or on or after December 1, 2023 (in respect determination by such date the Specified Dollar Amount shall be $1,000 per $1,000 principal amount of Notes converted with a Conversion Date that occurs on or after December 1, 2023Notes).
(iv) The cash, shares of Common Shares Stock or combination of cash and shares of Common Shares Stock payable or deliverable by the Company in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows follows:
(A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted:
(A) if Physical Settlement applies to such conversion, converted a number of shares of Common Shares Stock equal to the Conversion Rate in effect on the Conversion Date for such conversion(plus cash in lieu of any fractional share of Common Stock issuable upon conversion pursuant to Section 14.02(j));
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement applies to such conversionSettlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 25 20 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement applies to such conversionSettlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 25 20 consecutive Trading Days during the related Observation PeriodPeriod (plus cash in lieu of any fractional share of Common Stock issuable upon conversion pursuant to Section 14.02(j)).
(v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Share, if anyStock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the sameDaily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 13.02(e14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the Applicable Procedures procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h) and, if required, pay all transfer or similar taxes, if any, and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, facsimile or electronic communication in PDF or other electronic transmission thereofformat) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the Corporate Trust Office or the office of the Conversion Agent (if other than the Trustee) and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Shares Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the Corporate Trust Office or the office of the Conversion AgentAgent (if other than the Trustee), (3) if required, furnish appropriate endorsements and transfer documents and documents, (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h)14.02(h) and (5) if required, pay all transfer or similar taxes, if any. The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 13 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered for conversion by a Holder thereof if such Holder has also delivered a Repurchase Notice or Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Repurchase Notice or Fundamental Change Repurchase Notice Notice, as the case may be, in accordance with Section 14.0215.03. If Subject to any procedures or requirements of the applicable Depositary in the case of any Global Note, if more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 13.03(b14.03(b) and Section 13.07(a14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement (provided that, with respect to any conversion following the Regular Record Date immediately preceding the Maturity Date where Physical Settlement applies, the Company shall settle any such conversion on the Maturity Date or, if the Maturity Date is not a Business Day, the next succeeding Business Day, and the Conversion Date shall be deemed to be the second Business Day immediately before such date), or on the second Business Day immediately following the last Trading Day of the Observation Period, if in the case of any other Settlement Method appliesMethod. If any shares of Common Shares Stock are due to a converting Holder, the Company shall issue or cause to be issued, and deliver (or otherwise cause to be deliveredif applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of shares of Common Shares Stock to which such Holder shall be entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and upon receipt of a Company Order, the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Shares Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent Company may refuse to deliver the certificates representing the shares of Common Shares Stock being issued in a name other than the Holder’s name until the Trustee Company receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 13.0414.04, no adjustment shall be made for dividends on any shares of Common Shares Stock issued upon the conversion of any Note as provided in this Article 1314.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below in this Section 13.02(h), and the Company will not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and Common Shares, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided, however, that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, shall receive the full interest payment due on Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date.
(i) The Person in whose name any Common Shares shall be issuable upon conversion shall be treated as a shareholder of record of such shares as of the close of business on the relevant Conversion Date (if Physical Settlement applies to such conversion) or as of the close of business on the last Trading Day of the relevant Observation Period (if Combination Settlement applies to such conversion), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional Common Share upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Common Share issuable upon conversion based on the Daily VWAP for the relevant Conversion Date, in the case of Physical Settlement, or based on the Daily VWAP for the last Trading Day of the relevant Observation Period, in the case of Combination Settlement. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be issuable upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 2 contracts
Sources: Indenture (Twenty One Capital, Inc.), Indenture (Twenty One Capital, Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 13.0214.02, Section 13.03(b14.03(b) and Section 13.07(a14.07(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying or delivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount Capitalized Principal Amount of Notes being converted, cash (“Cash Settlement”), shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Physical Settlement”), ) or a combination of cash and shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Combination Settlement”), at its election, as set forth in this Section 13.0214.02. Notwithstanding the foregoing or anything else in this Indenture or the Notes, subject (x) unless and until the Authorized Share Effective Date has occurred, the Company shall be required to (and shall otherwise be deemed to) elect Cash Settlement in respect of all Notes submitted for conversion and (y) following the requirements Authorized Share Effective Date, unless and until the Company obtains Requisite Stockholder Approval, (I) the Company may not elect Physical Settlement if the number of Section 13.07shares of Common Stock the Company would be required to deliver, together with the number of all other shares of Common Stock the Company previously delivered in respect of Notes previously submitted for conversion, would exceed the Conversion Share Cap and (II) if the Company elects or is deemed to elect Combination Settlement, the number of shares of Common Stock the Company would be required to deliver, together with the number of all other shares of Common Stock the Company previously delivered in respect of Notes previously submitted for conversion, shall not exceed the Conversion Share Cap, and any Settlement Amount that would be deliverable in shares of Common Stock but for such Conversion Share Cap limitation shall be delivered in cash.
(i) (x) All conversions of Called Notes for which the relevant Conversion Date occurs during a the related Redemption Period shall be settled using the same Settlement Method, and (y) all conversions for which the relevant Conversion Date occurs on or after December 1February 28, 2023 2026, shall be settled using the same Settlement Method.
(ii) Except for any such conversions for which the relevant Conversion Date occurs during a Redemption Period and any conversions for which the relevant Conversion Date occurs on or after December 1February 28, 20232026, and except to the extent the Company elects Physical Settlement to apply pursuant to Section 14.01(b)(ii) in a notice as described in such Section, the Company shall use the same Settlement Method for all conversions with occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with that occur on different Conversion Dates.
(iii) If, in respect of any Conversion Date (or any conversion for which one of the relevant Conversion Date occurs during a Redemption Period on or after December 1periods described below, 2023as the case may be), the Company elects to a Settlement Method, the Company shall deliver a notice (the “Settlement Notice”) of the relevant Settlement Method so elected in respect of such Conversion Date (or such period, as the case may be), the Company shall deliver such Settlement Notice ) to converting Holders (with a copy to the Trustee and the Conversion Agent (if other than the Trustee)) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of (w) any conversions of any Called Notes for which the relevant Conversion Date occurs (A) during a the related Redemption Period, in the applicable related Redemption Notice or Notice, (Bx) any conversions of Notes for which the relevant Conversion Date occurs on or after December 1February 28, 20232026, no later than the close of business on the Business Day immediately preceding December 1February 28, 20232026, (y) any conversion for which the Company has irrevocably elected Physical Settlement to apply pursuant to Section 14.01(b)(ii) in a notice as described in such Section or (z) any conversion for which the Company has irrevocably elected Combination Settlement, with a certain Specified Dollar Amount or a Minimum Specified Amount per $1,000 Capitalized Principal Amount of Notes, to apply pursuant to the provisions of this Section 14.02(a)(iii), as described in this Section 14.02(a)(iii)). If the Company does not timely elect a Settlement Method with respect to any conversion prior to the deadline set forth in the immediately preceding sentence, then the Company shall no longer have the right to elect Cash Settlement or Physical Settlement for such conversion or during such period and the Company shall be deemed to have elected the Default Combination Settlement Method in respect of such conversionits Conversion Obligation, and the Specified Dollar Amount per $1,000 Capitalized Principal Amount of Notes shall be equal to $1,000. Such Settlement Notice, if provided, Notice shall specify the relevant Settlement Method and, and in the case of an election of Combination Settlement, the applicable relevant Settlement Notice shall indicate the Specified Dollar AmountAmount per $1,000 Capitalized Principal Amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a timely notify converting Holders of the Specified Dollar Amount per $1,000 principal amount Capitalized Principal Amount of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount Capitalized Principal Amount of Notes shall be deemed to be $1,000. By written notice to the Holders (with a copy to the Trustee and the Conversion Agent (if other than the Trustee)), the Company may, prior to February 28, 2026, at its option, elect to irrevocably fix the Settlement Method to any Settlement Method that the Company is then permitted to elect, including Combination Settlement with a Specified Dollar Amount per $1,000 Capitalized Principal Amount of Notes of $1,000 or with an ability to continue to set the Specified Dollar Amount per $1,000 Capitalized Principal Amount of Notes at or above a specific amount (the “Minimum Specified Amount”) set forth in such election notice. If the Company irrevocably elects Combination Settlement with an ability to continue to set the Specified Dollar Amount per $1,000 Capitalized Principal Amount of Notes at or above a specific amount, the Company shall send written notice to Holders converting their Notes, the Trustee and the Conversion Agent of such Specified Dollar Amount no later than the relevant deadline for election of a Settlement Method as described in this Section 14.02(a)(iii), or, if the Company does not timely notify Holders, such Specified Dollar Amount shall be the Minimum Specified Amount set forth in the election notice, unless no Minimum Specified Amount was set forth in the election notice, in which case such Specified Dollar Amount shall be $1,000 per $1,000 Capitalized Principal Amount of Notes. The irrevocable election shall apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such notice; provided that no such election will affect any Settlement Method theretofore elected (or deemed to be elected) with respect to any Note. For the avoidance of doubt, such an irrevocable election, if made, shall be effective without the Company’s failure need to so select a Settlement Method or Specified Dollar Amount when so permitted shall not constitute a Default or Event of Default under amend this Indenture or the Notes, including pursuant to Section 10.01(i). By notice to the HoldersHowever, the Company may change nonetheless choose to execute such an amendment at its option. If the Default Company irrevocably fixes the Settlement Method pursuant to any permitted Settlement Methodthe provisions in this Section 14.02(a)(iii), except it may not change the Default and such Settlement Method during any Redemption Period (in respect of Notes converted is not Combination Settlement with a Conversion Date occurring during Specified Dollar Amount of $1,000 per $1,000 Capitalized Principal Amount of Notes, then, concurrently with providing written notice to Holders of such Redemption Periodelection, the Company shall either post the fixed Settlement Method on its website or disclose the same in a current report on Form 8-K (or any successor form) or on or after December 1, 2023 (in respect of Notes converted that is filed with a Conversion Date that occurs on or after December 1, 2023)the Commission.
(iv) The cash, shares of Common Shares Stock or combination of cash and shares of Common Shares Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows (for the avoidance of doubt, with pro-ration for any portion of the Capitalized Principal Amount subject to conversion that is not an integral multiple of $1,000):
(A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount Capitalized Principal Amount of Notes being converted:
(A) if Physical Settlement applies to such conversion, converted a number of shares of Common Shares Stock equal to the Conversion Rate in effect on the Conversion Date for such conversionDate;
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement applies to such conversionSettlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount Capitalized Principal Amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 25 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement applies to such conversionSettlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount Capitalized Principal Amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 25 consecutive Trading Days during the related Observation Period.
(v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Share, if anyStock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the sameDaily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 13.02(e14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the Applicable Procedures procedures of the Depositary in effect at that time for converting a beneficial interest in a Global Note and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h) (and, if required, pay all transfer or similar taxes, if any, as set forth in Section 14.02(d) and Section 14.02(e)) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Shares Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to any accrued interest that has not been capitalized and is payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h). The Trustee (and and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 13 14 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Holder ▇▇▇▇▇▇ has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 14.0215.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 13.03(b14.03(b) and Section 13.07(a14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement appliesSettlement, or on the second Business Day immediately following the last Trading Day of the relevant Observation Period, if in the case of any other Settlement Method appliesMethod; provided that, with respect to any Conversion Date occurring during a Redemption Period or after the Regular Record Date immediately preceding the Maturity Date, the Company will settle any such conversion for which Physical Settlement is applicable on the relevant Redemption Date or the Maturity Date, as applicable. If any shares of Common Shares Stock are due to a converting HolderHolders, the Company shall issue and deliver (or otherwise cause to be delivered) to the Conversion Agent or issued, and deliver to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common Shares Stock to which such Holder shall be entitled, in book-entry format through the Depositary, entitled in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax or other similar governmental charge due on the issue any issuance of any shares of Common Shares Stock upon conversion, unless the tax is due because the Holder requests any such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent or the Company’s stock transfer agent, as applicable, may refuse to deliver the certificates representing the shares of Common Shares Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder ▇▇▇▇▇▇ in accordance with the immediately preceding sentence.
(f) Except as provided in Section 13.0414.04, no adjustment shall be made for dividends on any shares of Common Shares Stock issued upon the conversion of any Note as provided in this Article 1314.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for any accrued and unpaid interest, if anyinterest that has not been paid or capitalized, except as set forth below in this Section 13.02(h), and the Company will not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notesbelow. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount Capitalized Principal Amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and Common Shares, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided, however, that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, shall receive the full interest payment due on Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date.
(i) The Person in whose name any Common Shares shall be issuable upon conversion shall be treated as a shareholder of record of such shares as of the close of business on the relevant Conversion Date (if Physical Settlement applies to such conversion) or as of the close of business on the last Trading Day of the relevant Observation Period (if Combination Settlement applies to such conversion), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional Common Share upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Common Share issuable upon conversion based on the Daily VWAP for the relevant Conversion Date, in the case of Physical Settlement, or based on the Daily VWAP for the last Trading Day of the relevant Observation Period, in the case of Combination Settlement. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be issuable upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.N
Appears in 2 contracts
Sources: Indenture (Nikola Corp), Exchange and Investment Agreement (Nikola Corp)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 13.0214.02, Section 13.03(b14.03(b) and Section 13.07(a14.07(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying or delivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Physical Settlement”), ) or a combination of cash and shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Combination Settlement”), at its election, as set forth in this Section 13.02, subject to the requirements of Section 13.0714.02.
(i) All conversions for which the relevant Conversion Date occurs during after the Company’s issuance of a Notice of Redemption Period shall be settled using with respect to the same Settlement MethodNotes and prior to the related Redemption Date, and all conversions for which the relevant Conversion Date occurs on or after December 1June 15, 2023 2023, shall be settled using the same Settlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs during after the Company’s issuance of a Notice of Redemption Period with respect to the Notes but prior to the related Redemption Date, and any conversions for which the relevant Conversion Date occurs on or after December 1June 15, 2023, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates.
(iii) If, in respect of any Conversion Date (or any conversion conversions for which the relevant Conversion Date occurs during after the Company’s issuance of a Notice of Redemption Period with respect to the Notes and prior to the related Redemption Date, or for which the relevant Conversion Date occurs on or after December 1June 15, 2023), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company Company, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions of any Notes for which the relevant Conversion Date occurs (Ax) during after the date of issuance of a Notice of Redemption Periodwith respect to the Notes and prior to the related Redemption Date, in the applicable such Notice of Redemption Notice or (By) on or after December 1June 15, 2023, no later than the close of business on the Business Day immediately preceding December 1June 15, 2023). If the Company does not elect a Settlement Method with respect to any conversion prior to the deadline set forth in the immediately preceding sentence, then the Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to any conversion on such Conversion Date or during such period, and the Company shall be deemed to have elected the Default Combination Settlement Method in respect of such conversionits Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice, if provided, Notice shall specify the relevant Settlement Method and, and in the case of an election of Combination Settlement, the applicable relevant Settlement Notice shall indicate the Specified Dollar AmountAmount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. For the avoidance of doubt, the Company’s failure to so select a Settlement Method or Specified Dollar Amount when so permitted shall not constitute a Default or Event of Default under this Indenture or the Notes. By notice to the all Holders, the Company may change may, prior to June 15, 2023, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Default Notes through Combination Settlement Method to any permitted Settlement Method, except it may not change the Default Settlement Method during any Redemption Period (in respect with a Specified Dollar Amount per $1,000 principal amount of Notes converted with a of $1,000 for all Conversion Date Dates occurring during subsequent to delivery of such Redemption Period) or on or after December 1, 2023 (in respect of Notes converted with a Conversion Date that occurs on or after December 1, 2023)notice.
(iv) The cash, shares of Common Shares Stock or combination of cash and shares of Common Shares Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows follows:
(A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted:
(A) if Physical Settlement applies to such conversion, converted a number of shares of Common Shares Stock equal to the Conversion Rate in effect on the Conversion Date for such conversionDate;
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement applies to such conversionSettlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 25 30 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement applies to such conversionSettlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 25 30 consecutive Trading Days during the related Observation Period.
(v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Share, if anyStock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the sameDaily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 13.02(e14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the Applicable Procedures applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Shares Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 13 14 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 14.0215.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 13.03(b14.03(b) and Section 13.07(a14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement applies(provided that, with respect to any Conversion Date following the Regular Record Date immediately preceding the Maturity Date where Physical Settlement applies to the related conversion, the Company shall settle any such conversion on the Maturity Date), or on the second Business Day immediately following the last Trading Day of the Observation Period, if in the case of any other Settlement Method appliesMethod. If any shares of Common Shares Stock are due to a converting Holder, the Company shall issue or cause to be issued, and deliver (or otherwise cause to be deliveredif applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of shares of Common Shares Stock to which such Holder shall be entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Shares Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Shares Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 13.0414.04, no adjustment shall be made for dividends on any shares of Common Shares Stock issued upon the conversion of any Note as provided in this Article 1314.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below in this Section 13.02(h), and the Company will not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notesbelow. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common SharesStock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided, however, provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, Date shall receive the full interest payment due on the Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date.
(i) The Person in whose name any the shares of Common Shares Stock shall be issuable upon conversion shall be treated as a shareholder stockholder of record of such shares as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement applies to such conversionSettlement) or as of the close of business on the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement applies to such conversionSettlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional share of Common Share Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Share Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date, Date (in the case of Physical Settlement, ) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period, Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be issuable issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 2 contracts
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 13.0214.02, Section 13.03(b14.03(b) and Section 13.07(a14.07(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying or delivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Physical Settlement”), ) or a combination of cash and shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Combination Settlement”), at its election, as set forth in this Section 13.02, subject to the requirements of Section 13.0714.02.
(i) All conversions for which the relevant Conversion Date occurs occurring (x) on or after September 15, 2027 or (y) during a Redemption Period shall be settled using the same Settlement Method, and all conversions for which the relevant Conversion Date occurs on or after December 1, 2023 shall be settled using the same Settlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs during a Redemption Period and any conversions for which the relevant Conversion Date occurs on or after December 1September 15, 20232027, the Company shall use the same Settlement Method for all conversions with occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with that occur on different Conversion Dates.
(iii) If, in respect of any Conversion Date (or any conversion for which one of the relevant Conversion Date occurs during a Redemption Period on or after December 1periods described in the fourth immediately succeeding set of parentheses, 2023as the case may be), the Company elects to a Settlement Method, the Company shall deliver a written notice (the “Settlement Notice”) of the relevant Settlement Method so elected in respect of such Conversion Date (or such period, as the case may be)) to converting Holders, the Company shall deliver such Settlement Notice to converting Holders Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions of any Notes for which the relevant Conversion Date occurs (Ax) occurring (i) during a Redemption Period, in the applicable such Redemption Notice Notice, or (Bii) on or after December 1September 15, 20232027, no later than the close of business on the Business Day immediately preceding December 1September 15, 20232027, or (y) for which the Company has irrevocably elected Combination Settlement, with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000, to apply pursuant to the provisions described in the immediately succeeding paragraph, in the related notice described in such paragraph) (in each case, the “Settlement Method Election Deadline”). If the Company does not timely elect a Settlement Method with respect to any conversion prior to the deadline set forth in Settlement Method Election Deadline, the immediately preceding sentence, then Company shall no longer have the right to elect Cash Settlement or Physical Settlement for such conversion or during such period and the Company shall be deemed to have elected the Default Settlement Method in respect of such conversionits Conversion Obligation. Such Settlement Notice, if provided, Notice shall specify the relevant Settlement Method and, and in the case of an election of Combination Settlement, the applicable relevant Settlement Notice shall indicate the Specified Dollar AmountAmount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. By written notice to the Holders, the Trustee and the Conversion Agent, the Company may, prior to September 15, 2027, irrevocably elect Combination Settlement, with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000, to apply to all conversions for which the relevant Conversion Date occurs subsequent to the date of delivery of such notice; provided that any such election that is made during a Redemption Period (but after the Redemption Notice Date) will not apply to any conversions of Notes with Conversion Dates that occur during such Redemption Period. If the Company irrevocably elects Combination Settlement with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above a specific amount, the Company shall, after the date of such election, inform Holders, the Trustee, and the Conversion Agent (if other than the Trustee) of such Specified Dollar Amount no later than the Settlement Method Election Deadline, or, if the Company does not timely notify Holders, the Trustee, and the Conversion Agent of the Specified Dollar Amount, such Specified Dollar Amount shall be the specific amount set forth in the notice of such change or election or, if no specific amount was set forth in the notice of such change or election, such Specified Dollar Amount shall be $1,000 per $1,000 principal amount of Notes. If the Company changes the Default Settlement Method or irrevocably elects to fix the Settlement Method pursuant to the preceding sentence, the Company shall promptly either post the Default Settlement Method or the fixed Settlement Method, as applicable, on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission. The irrevocable election shall apply to all conversions of Notes with a Conversion Date occurring subsequent to delivery of such notice; provided, however, that no such change in the Default Settlement Method or irrevocable election will affect any Settlement Method theretofore elected (or deemed to be elected) with respect to any Note. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the Company’s failure need to so select a Settlement Method or Specified Dollar Amount when so permitted shall not constitute a Default or Event of Default under amend this Indenture or the Notes, including pursuant to Section 10.01(k). By notice to the HoldersHowever, the Company may change the Default Settlement Method nonetheless choose to any permitted Settlement Method, except it may not change the Default Settlement Method during any Redemption Period (in respect of Notes converted with a Conversion Date occurring during execute such Redemption Period) or on or after December 1, 2023 (in respect of Notes converted with a Conversion Date that occurs on or after December 1, 2023)an amendment at its option.
(iv) The cash, shares of Common Shares Stock or combination of cash and shares of Common Shares Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows follows:
(A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted:
(A) if Physical Settlement applies to such conversion, converted a number of shares of Common Shares Stock equal to the Conversion Rate in effect on the Conversion Date for such conversionDate;
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement applies to such conversionSettlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 25 30 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement applies to such conversionSettlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 25 30 consecutive Trading Days during the related Observation Period.
(v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Share, if anyStock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) in writing of the sameDaily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 13.02(e14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the Applicable Procedures procedures of the Depositary in effect at that time for converting a beneficial interest in a Global Note and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h) (and, if required, pay all transfer or similar taxes, if any, as set forth in Section 14.02(d) and Section 14.02(e)) and (iii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Shares Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h). The Trustee (and and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 13 14 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 14.0215.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 13.03(b14.03(b) and Section 13.07(a14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement appliesSettlement, or on the second Business Day immediately following the last Trading Day of the relevant Observation Period, if in the case of any other Settlement Method appliesMethod; provided that, with respect to any Conversion Date occurring during a Redemption Period, the Company will settle any such conversion for which Physical Settlement is applicable on the relevant Redemption Date; provided further that, notwithstanding the foregoing, with respect to any Conversion Date occurring on or after September 15, 2027, the Company will settle any such conversion for which Physical Settlement is applicable on the Maturity Date. If any shares of Common Shares Stock are due to a converting HolderHolders, the Company shall issue and deliver (or otherwise cause to be delivered) to the Conversion Agent or issued, and deliver to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common Shares Stock to which such Holder shall be entitled, in book-entry format through the Depositary, entitled in satisfaction of the Company’s Conversion Obligation.
(d) In case any Physical Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Physical Note so surrendered a new Physical Note or Physical Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Physical Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Physical Notes issued upon such conversion being different from the name of the Holder of the old Physical Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax or other similar governmental charge due on the issue any issuance of any shares of Common Shares Stock upon conversion, unless the tax is due because the Holder requests any such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Shares Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 13.0414.04, no adjustment shall be made for dividends on any shares of Common Shares Stock issued upon the conversion of any Note as provided in this Article 1314.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below in this Section 13.02(h), and the Company will not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notesbelow. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not includingexcluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not includingexcluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelledcanceled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common SharesStock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided, however, provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following succeeding the corresponding Interest Payment Date; (3) for conversions during any Redemption Period; or (4) to the extent of any Defaulted Amountsoverdue interest, if any Defaulted Amounts overdue interest exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, Date shall receive the full interest payment due on the Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date.
(i) The Person in whose name the certificate for any shares of Common Shares Stock delivered upon conversion is registered shall be issuable upon conversion shall deemed to be treated as a shareholder the holder of record of such shares of Common Stock as of the close of business on the relevant Conversion Date (if Physical Settlement applies to such conversion) or as of the close of business on the last Trading Day of the relevant Observation Period (if Combination Settlement applies to such conversion), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional Common Share upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Common Share issuable upon conversion based on the Daily VWAP for the relevant Conversion Date, in the case of Physical Settlement, or based on the Daily VWAP for the last Trading Day of the relevant Observation Period, in the case of Combination Settlement. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be issuable upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.busin
Appears in 2 contracts
Sources: Indenture (Neogenomics Inc), Indenture (Neogenomics Inc)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 13.0214.02, Section 13.03(b14.03(b) and Section 13.07(a14.07(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying pay or deliveringdeliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Physical Settlement”), ) or a combination of cash and shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Combination Settlement”), at its election, as set forth in this Section 13.02, subject to the requirements of Section 13.0714.02.
(i) All conversions for which the relevant Conversion Date occurs during a Redemption Period on or after December 15, 2019 shall be settled using the same Settlement MethodMethod (and Specified Dollar Amount, and all conversions for which the relevant Conversion Date occurs on or after December 1, 2023 shall be settled using the same Settlement Methodif applicable).
(ii) Except for any conversions for which the relevant Conversion Date occurs during a Redemption Period and any conversions for which the relevant Conversion Date occurs on or after December 115, 20232019, the Company shall use the same Settlement Method (and Specified Dollar Amount, if applicable) for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates.
(iii) If, in respect of any Conversion Date (or any conversion for which the relevant Conversion Date occurs during a Redemption Period on or after December 1period described in the third immediately succeeding set of parentheses, 2023as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company Company, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions of any Notes for which the relevant Conversion Date occurs (A) during a Redemption Period, in the applicable Redemption Notice or (B) on or after December 115, 20232019, no later than the close of business on the Business Scheduled Trading Day immediately preceding December 115, 20232019). If the Company does not elect a Settlement Method with respect to any conversion prior to the deadline set forth in the immediately preceding sentence, then the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected the Default Combination Settlement Method in respect of such conversionits Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice, if provided, Notice shall specify the relevant Settlement Method and, and in the case of an election of Combination Settlement, the applicable relevant Settlement Notice shall indicate the Specified Dollar AmountAmount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. For the avoidance of doubt, the Company’s failure to so select a Settlement Method or Specified Dollar Amount when so permitted shall not constitute a Default or Event of Default under this Indenture or the Notes. By notice to the Holders, the Company may change the Default Settlement Method to any permitted Settlement Method, except it may not change the Default Settlement Method during any Redemption Period (in respect of Notes converted with a Conversion Date occurring during such Redemption Period) or on or after December 1, 2023 (in respect of Notes converted with a Conversion Date that occurs on or after December 1, 2023).
(iv) The cash, shares of Common Shares Stock or combination of cash and shares of Common Shares Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows follows:
(A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted:
(A) if Physical Settlement applies to such conversion, converted a number of shares of Common Shares Stock equal to the Conversion Rate in effect on the Conversion Date for such conversion(plus cash in lieu of any fractional share of Common Stock as set forth in Section 14.02(j));
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement applies to such conversionSettlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 25 40 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement applies to such conversionSettlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 25 40 consecutive Trading Days during the related Observation Period.
(v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Share, if anyStock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the sameDaily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 13.02(e14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the Applicable Procedures procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h) and any taxes payable as described in Section 14.02(e) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Shares Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h) and any taxes payable as described in Section 14.02(e). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 13 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered for conversion by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 14.0215.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 13.03(b14.03(b) and Section 13.07(a14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second third Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement appliesSettlement, or on the second third Business Day immediately following the last Trading Day of the relevant Observation Period, if in the case of any other Settlement Method appliesMethod. If any shares of Common Shares Stock are due to a converting HolderHolders, the Company shall issue and deliver (or otherwise cause to be delivered) issued, and deliver to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common Shares Stock to which such Holder shall be entitled, in book-entry format through the Depositary, entitled in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Shares Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Shares Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 13.0414.04, no adjustment shall be made for dividends on any shares of Common Shares Stock issued upon the conversion of any Note as provided in this Article 1314.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below in this Section 13.02(h), and the Company will not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notesbelow. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common SharesStock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided, however, provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (43) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, Date shall receive the full interest payment due on the Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date.
(i) The Person in whose name any the shares of Common Shares Stock shall be issuable upon conversion shall be treated as a shareholder stockholder of record of such shares as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement applies to such conversionSettlement) or as of the close of business on the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement applies to such conversionSettlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional share of Common Share Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Share Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date, Date (in the case of Physical Settlement, ) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period, Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be issuable issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 2 contracts
Sources: Indenture (Avid Technology, Inc.), Indenture (Avid Technology, Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 13.0211.02, Section 13.03(b11.03(b) and Section 13.07(a11.07(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying pay or deliveringdeliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), Common Shares, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional Common Share Shares in accordance with subsection (j) of this Section 13.02(j) 11.02 (“Physical Settlement”), ) or a combination of cash and Common Shares, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional Common Share Shares in accordance with subsection (j) of this Section 13.02(j) 11.02 (“Combination Settlement”), at its election, as set forth in this Section 13.02, subject to the requirements of Section 13.0711.02.
(i) All conversions for which the relevant Conversion Date occurs during a Redemption Period shall be settled using the same Settlement Method, and all conversions for which the relevant Conversion Date occurs on or after December September 1, 2023 2025 shall be settled using the same Settlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs during a Redemption Period and any conversions for which the relevant Conversion Date occurs on or after December September 1, 20232025, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates.
(iii) If, in respect of any Conversion Date (or any conversion for which the relevant Conversion Date occurs during a Redemption Period on or after December 1period described in the third immediately succeeding set of parentheses, 2023as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company Company, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the close of business on the second Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions of any Notes for which the relevant Conversion Date occurs (A) during a Redemption Period, in the applicable Redemption Notice or (B) on or after December September 1, 20232025, no later than the close of business on the Business Day immediately preceding December September 1, 20232025). If the Company does not elect a Settlement Method with respect to any conversion prior to the deadline set forth in the immediately preceding sentence, then the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected the Default Combination Settlement Method in respect of such conversionits Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice, if provided, Notice shall specify the relevant Settlement Method and, and in the case of an election of Combination Settlement, the applicable relevant Settlement Notice shall indicate the Specified Dollar AmountAmount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. By notice to Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 1, 2025, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through a Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 for all Conversion Dates occurring subsequent to delivery of such notice. Not later than three Business Days after providing notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee) of an irrevocable election with respect to the Settlement Method as described in the immediately preceding sentence, the Company shall issue a Current Report on Form 8-K or press release or otherwise provide public disclosure in a manner compliant with Regulation FD announcing that the Company has made such irrevocable election. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the Company’s failure need to so select a Settlement Method or Specified Dollar Amount when so permitted shall not constitute a Default or Event of Default under amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). By notice to the HoldersHowever, the Company may change the Default Settlement Method may, nonetheless, choose to any permitted Settlement Method, except it may not change the Default Settlement Method during any Redemption Period (in respect of Notes converted with a Conversion Date occurring during execute such Redemption Period) or on or after December 1, 2023 (in respect of Notes converted with a Conversion Date that occurs on or after December 1, 2023)an amendment at its option.
(iv) The cash, Common Shares or combination of cash and Common Shares in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows follows:
(A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted:
(A) if Physical Settlement applies to such conversion, converted a number of Common Shares equal to the Conversion Rate in effect on the Conversion Date for such conversionDate;
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement applies to such conversionSettlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 25 50 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement applies to such conversionSettlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 25 50 consecutive Trading Days during the related Observation Period.
(v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional Common Share, if any, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the sameDaily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional Common Shares. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 13.02(e11.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the Applicable Procedures procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h11.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any Common Shares to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h11.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 13 11 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered for conversion by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 14.0212.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered, subject, in the case of Global Notes, to the rules of the applicable Depositary.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 13.03(b11.03(b) and Section 13.07(a11.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement appliesSettlement, or on the second Business Day immediately following the last Trading Day of the Observation Period, if in the case of any other Settlement Method appliesMethod. If any Common Shares are due to a converting HolderHolders, the Company shall issue or cause to be issued, and deliver (or otherwise cause to be deliveredif applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of Common Shares to which such Holder shall be entitled, in certificate form or in book-entry format through the Depositaryformat, in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company (1) in the case of a Global Note, shall cause the principal balance of a Global Note to be adjusted in accordance with the procedures of the Depositary in effect at that time or (2) in the case of a Physical Note, shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any Common Shares upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the Common Shares being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 13.0411.04, no adjustment shall be made for dividends on any Common Shares issued upon the conversion of any Note as provided in this Article 1311.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below in this Section 13.02(h)below, and the Company will shall not adjust the Conversion Rate to adjust for any accrued and unpaid interest on any converted the Notes. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not includingexcluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not includingexcluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and Common Shares, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable payable, on such Interest Payment Date, on the Notes so converted; provided, however, provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (43) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists exist at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, Date shall receive the full interest payment due on the Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date.
(i) The Person in whose name any the Common Shares shall be issuable upon conversion shall be treated as a shareholder stockholder of record of such shares as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement applies to such conversionSettlement) or as of the close of business on the last Trading Day of the relevant Observation Period (if the Company elects (or is deemed to have elected) to satisfy the related Conversion Obligation by Combination Settlement applies to such conversionSettlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional Common Share Shares upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Common Share Shares issuable upon conversion based on the Daily VWAP for the relevant Conversion Date, Date (in the case of Physical Settlement, ) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period, Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares Common Shares that shall be issuable issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares Common Shares remaining after such computation shall be paid in cash.
Appears in 2 contracts
Sources: Second Supplemental Indenture (TimkenSteel Corp), Convertible Notes Exchange Agreement (TimkenSteel Corp)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 13.0214.02, Section 13.03(b14.03(b) and Section 13.07(a14.07(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying pay or deliveringdeliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), Common Class A Shares, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional Common Class A Share in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Physical Settlement”), ) or a combination of cash and Common Class A Shares, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional Common Class A Share in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Combination Settlement”), at its election, as set forth in this Section 13.02, subject to the requirements of Section 13.0714.02.
(i) All conversions for which the relevant Conversion Date occurs during on or after the Company’s issuance of a Redemption Period shall be settled using Notice with respect to the same Settlement MethodNotes but prior to the related Redemption Date, and all conversions for which the relevant Conversion Date occurs on or after December 1June 15, 2023 2018, shall be settled using the same Settlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs during on or after the Company’s issuance of a Redemption Period Notice with respect to the Notes but prior to the related Redemption Date, and any conversions for which the relevant Conversion Date occurs on or after December 1June 15, 20232018, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with that occur on different Conversion Dates.
(iii) If, in respect of any Conversion Date (or any conversion for which one of the relevant Conversion Date occurs during a Redemption Period on or after December 1periods described in the fourth immediately succeeding set of parentheses, 2023as the case may be), the Company elects to deliver a written notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company Company, through the Trustee, shall deliver such Settlement Notice to converting Holders (and the Conversion Agent, if different than the Trustee) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions of any Notes for which the relevant Conversion Date occurs (A) during a Redemption Period, in the applicable Redemption Notice or (Bx) on or after December 1the Company’s issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date, 2023in such Redemption Notice, or (y) on or after June 15, 2018, no later than June 15, 2018). Such Settlement Notice shall specify the close relevant Settlement Method and in the case of business on an election of Combination Settlement, the Business Day immediately preceding December 1, 2023relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company does not elect a Settlement Method with respect to any conversion prior to the deadline set forth in the immediately preceding sentence, then the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected the Default Combination Settlement Method in respect of such conversion. Such Settlement Noticeits Conversion Obligation, if provided, shall specify and the relevant Settlement Method and, in the case of Combination Settlement, the applicable Specified Dollar AmountAmount per $1,000 principal amount of Notes shall be equal to $1,000. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. For the avoidance of doubt, the Company’s failure to so select a Settlement Method or Specified Dollar Amount when so permitted shall not constitute a Default or Event of Default under this Indenture or the Notes. By notice to the Holders, the Company may change the Default Settlement Method to any permitted Settlement Method, except it may not change the Default Settlement Method during any Redemption Period (in respect of Notes converted with a Conversion Date occurring during such Redemption Period) or on or after December 1, 2023 (in respect of Notes converted with a Conversion Date that occurs on or after December 1, 2023).
(iv) The cash, Common Class A Shares or combination of cash and Common Class A Shares in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows follows:
(A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted:
(A) if Physical Settlement applies to such conversion, converted a number of Common Class A Shares equal to the Conversion Rate in effect on the Conversion Date for such conversionDate;
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement applies to such conversionSettlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 25 40 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement applies to such conversionSettlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 25 40 consecutive Trading Days during the related Observation Period.
(v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the relevant Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional Common Class A Share, if any, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the sameDaily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional Class A Share. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 13.02(e14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the Applicable Procedures procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any Common Class A Shares to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 13 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered for conversion by a Holder thereof if such Holder ▇▇▇▇▇▇ has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 14.0215.03. If the Company has designated a Redemption Date as described in, and pursuant to, Article 16, a Holder that complies with the requirements for conversion described in this Section 14.02 prior to the close of business on the Business Day immediately preceding the relevant Redemption Date (unless the Company fails to timely pay the Redemption Price, in which case each Holder shall have the right to convert its Notes until the Redemption Price for all Notes to be redeemed has been paid or duly provided for) shall be deemed to have delivered a notice of its election to not have its Notes so redeemed. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 13.03(b14.03(b) and in Section 13.07(a14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second third Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement appliesSettlement, or on the second third Business Day immediately following the last Trading Day of the Observation Period, if in the case of any other Settlement Method appliesMethod. If any Common Class A Shares are due to a converting HolderHolders, the Company shall issue and deliver (or otherwise cause to be delivered) issued, and deliver to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of Common Class A Shares to which such Holder shall be entitled, in book-entry format through the Depositary, entitled in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any Common Class A Shares upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the Common Class A Shares being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 13.0414.04, no adjustment shall be made for dividends on any Common Class A Shares issued upon the conversion of any Note as provided in this Article 1314.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below in this Section 13.02(h), and the Company will not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notesbelow. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and Common Class A Shares, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided, however, provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business next Scheduled Trading Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists exist at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, Date shall receive the full interest payment due on the Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date.
(i) The Person in whose name the certificate for any Common Class A Shares shall be issuable delivered upon conversion is registered shall be treated as a shareholder of record of such shares as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement applies to such conversionSettlement) or as of the close of business on the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement applies to such conversionSettlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional Common Class A Share upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Common Class A Share issuable upon conversion based on the Daily VWAP for on the relevant Conversion Date, Date (in the case of Physical Settlement, ) or based on the Daily VWAP for on the last Trading Day of the relevant Observation Period, Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be issuable issued upon conversion thereof shall be computed by the Company on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 2 contracts
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 13.0214.03, Section 13.03(b14.04(b) and Section 13.07(a14.08(a), upon conversion of any NoteNote pursuant to Section 14.01, the Company shall satisfy its Conversion Obligation by paying pay or deliveringdeliver, as the case may be, to the converting Holder, in respect of each $1,000 1.00 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.03 (“Physical Settlement”), ) or a combination of cash and shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.03 (“Combination Settlement”), at its election, as set forth in this Section 13.02, subject to the requirements of Section 13.0714.03.
(i) All conversions for which the relevant Conversion Date occurs during a Redemption Period shall be settled using the same Settlement Method, and all conversions for which the relevant Conversion Date occurs on or after December January 1, 2023 2024 shall be settled using the same Settlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs during a Redemption Period and any conversions for which the relevant Conversion Date occurs on or after December January 1, 20232024, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates.
(iii) If, in respect of any Conversion Date (or any conversion for which one of the relevant Conversion Date occurs during a Redemption Period on or after December 1periods described in the third immediately succeeding set of parentheses, 2023as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company shall deliver such Settlement Notice to converting Holders Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions of any Notes for which the relevant Conversion Date occurs (A) during a Redemption Period, in the applicable Redemption Notice or (B) on or after December January 1, 20232024, no later than the close of business on the Business Day immediately preceding December January 1, 20232024). If the Company does not elect a Settlement Method with respect to any conversion prior to the deadline set forth in the immediately preceding sentence, then the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected the Default Combination Settlement Method in respect of such conversionits Conversion Obligation, and the Specified Dollar Amount per $1.00 principal amount of Notes shall be equal to $1.00. Such Settlement Notice, if provided, Notice shall specify the relevant Settlement Method and, and in the case of an election of Combination Settlement, the applicable relevant Settlement Notice shall indicate the Specified Dollar AmountAmount per $1.00 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 1.00 principal amount of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 1.00 principal amount of Notes shall be deemed to be $1,000. For the avoidance of doubt, the Company’s failure to so select a Settlement Method or Specified Dollar Amount when so permitted shall not constitute a Default or Event of Default under this Indenture or the Notes. By notice to the Holders, the Company may change the Default Settlement Method to any permitted Settlement Method, except it may not change the Default Settlement Method during any Redemption Period (in respect of Notes converted with a Conversion Date occurring during such Redemption Period) or on or after December 1, 2023 (in respect of Notes converted with a Conversion Date that occurs on or after December 1, 2023)1.00.
(iv) The cash, shares of Common Shares Stock or combination of cash and shares of Common Shares Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows in respect of each $1,000 principal amount of Notes being convertedfollows:
(A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement applies Settlement, the Company shall deliver to such conversion, the converting Holder in respect of each $1.00 principal amount of Notes being converted a number of shares of Common Shares Stock equal to the Applicable Conversion Rate in effect on the Conversion Date for such conversionplus cash in lieu;
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement applies to such conversionSettlement, the Company shall pay to the converting Holder in respect of each $1,000 1.00 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 25 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement applies to such conversionSettlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 1.00 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 25 consecutive Trading Days during the related Observation PeriodPeriod plus cash in lieu.
(v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Share, if anyStock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the sameDaily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 13.02(e14.03(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the Applicable Procedures procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.03(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Shares Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.03(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 13 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered for conversion by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 14.0215.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 13.03(b14.04(b) and Section 13.07(a14.08(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement appliesSettlement, or on the second Business Day immediately following the last Trading Day of the Observation Period, if in the case of any other Settlement Method appliesMethod. If any shares of Common Shares Stock are due to a converting Holder, the Company shall issue and deliver (or otherwise cause to be delivered) issued, and deliver to the Conversion Agent stock transfer agent or to such Holder, or such Holder’s nominee or nominees, the full number of shares of Common Shares Stock to which such Holder shall be entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any Physical Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Physical Note so surrendered a new Physical Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Physical Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Physical Notes issued upon such conversion being different from the name of the Holder of the old Physical Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Shares Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent stock transfer agent may refuse to deliver the certificates representing the shares of Common Shares Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 13.0414.05, no adjustment shall be made for dividends on any shares of Common Shares Stock issued upon the conversion of any Note as provided in this Article 1314.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below in this Section 13.02(h), and the Company will not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notesbelow. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common SharesStock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes (including a PIK Payment, if applicable) on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date Date, however, must be accompanied by funds equal to the amount of interest payable on the Notes so convertedconverted (regardless of whether a PIK Payment will be made or shares of common stock will be issued, and in the event of a PIK Payment or distribution of shares of common stock, the interest payable will be the cash equivalent of any PIK Payment); provided, however, provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (43) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, Date shall receive the full interest payment due on the Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date.
(i) The Person in whose name any the shares of Common Shares Stock shall be issuable upon conversion shall be treated as a shareholder stockholder of record of such shares as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement applies to such conversionSettlement) or as of the close of business on the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement applies to such conversionSettlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional share of Common Share Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Share Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date, Date (in the case of Physical Settlement, ) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period, Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be issuable issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 2 contracts
Sources: Indenture (Endologix Inc /De/), Indenture (Endologix Inc /De/)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 13.0214.02, Section 13.03(b14.03(b) and Section 13.07(a14.07(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying pay or deliveringdeliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Physical Settlement”), ) or a combination of cash and shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Combination Settlement”), at its election, as set forth in this Section 13.02, subject to the requirements of Section 13.0714.02.
(i) All conversions (x) for which the relevant Conversion Date occurs during after the Company’s issuance of a Redemption Period shall be settled using Notice with respect to the same Settlement Method, Notes and all conversions prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date (y) for which the relevant Conversion Date occurs on or after December 1August 15, 2023 2029 and (z) following the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(iii)(B), in each case shall be settled using the same Settlement Method.
(ii) Except (w) for any conversions for which the relevant Conversion Date occurs during after the Company’s issuance of a Redemption Period and Notice with respect to the Notes but prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date, (x) for any conversions for which the relevant Conversion Date occurs on or after December 1August 15, 20232029, (y) to the extent the Company elects Physical Settlement to apply pursuant to Section 14.01(b)(ii) and (z) for any conversions following the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(iii)(B), in each case the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates.
(iii) If(A) Subject to the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(iii)(B), if, in respect of any Conversion Date (or any conversion for which one of the relevant Conversion Date occurs during a Redemption Period on or after December 1periods described in the third immediately succeeding set of parentheses, 2023as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company Company, shall deliver such Settlement Notice to the Trustee and the Conversion Agent (if other than the Trustee) and the converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions of any Notes (x) for which the relevant Conversion Date occurs (A) during on or after the date of issuance of a Redemption PeriodNotice with respect to the Notes and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date, in the applicable such Redemption Notice or (B) on or after December 1August 15, 20232029, no later than the close of business on the Business Day immediately preceding December 1August 15, 20232029 or (y) for which the Company has irrevocably elected Physical Settlement pursuant to Section 14.01(b)(ii), in the related notice described therein). If the Company does not elect a Settlement Method with respect to any conversion prior to the deadline set forth in the immediately preceding sentence, then the Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to the relevant Conversion Date (or such period, as the case may be) and the Company shall be deemed to have elected the Default Combination Settlement Method in respect of such conversionits Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice, if provided, Notice shall specify the relevant Settlement Method and, and in the case of an election of Combination Settlement, the applicable relevant Settlement Notice shall indicate the Specified Dollar AmountAmount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. For the avoidance of doubt, the Company’s failure to so select a Settlement Method or Specified Dollar Amount when so permitted shall not constitute a Default or Event of Default under this Indenture or the Notes. .
(A) By notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company may change prior to the Default close of business on the Scheduled Trading Day immediately preceding August 15, 2029, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of at least $1,000 for all Conversion Dates occurring subsequent to the delivery of such notice and for which another Settlement Method does not otherwise apply. If the Company irrevocably elects Combination Settlement with an ability to any permitted Settlement Methodcontinue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above a specific amount, except it may not change the Default Company shall, after the date of such election, either post the fixed Settlement Method during on the Company’s website or disclose the same in a current report on Form 8-K (or any Redemption Period successor form) that is filed with the Commission (and make such determination of such Specified Dollar Amount on or prior to the dates set forth above in respect of Notes converted with a Conversion Date occurring during Combination Settlement as if an irrevocable election had not otherwise occurred, or if the Company does not make such Redemption Period) or on or after December 1, 2023 (in respect determination by such date the Specified Dollar Amount shall be $1,000 per $1,000 principal amount of Notes converted with a Conversion Date that occurs on or after December 1, 2023Notes).
(iv) The cash, shares of Common Shares Stock or combination of cash and shares of Common Shares Stock payable or deliverable by the Company in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows follows:
(A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted:
(A) if Physical Settlement applies to such conversion, converted a number of shares of Common Shares Stock equal to the Conversion Rate in effect on the Conversion Date for such conversion(plus cash in lieu of any fractional share of Common Stock issuable upon conversion pursuant to Section 14.02(j));
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement applies to such conversionSettlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 25 40 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement applies to such conversionSettlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 25 40 consecutive Trading Days during the related Observation PeriodPeriod (plus cash in lieu of any fractional share of Common Stock issuable upon conversion pursuant to Section 14.02(j)).
(v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Share, if anyStock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the sameDaily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 13.02(e14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the Applicable Procedures procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h) and, if required, pay all transfer or similar taxes, if any, and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, facsimile or electronic communication in PDF or other electronic transmission thereofformat) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the Corporate Trust Office or the office of the Conversion Agent (if other than the Trustee) and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Shares Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the Corporate Trust Office or the office of the Conversion AgentAgent (if other than the Trustee), (3) if required, furnish appropriate endorsements and transfer documents and documents, (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h)14.02(h) and (5) if required, pay all transfer or similar taxes, if any. The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 13 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered for conversion by a Holder thereof if such Holder ▇▇▇▇▇▇ has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 14.0215.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 13.03(b14.03(b) and Section 13.07(a14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement (provided that, with respect to any conversion following the Regular Record Date immediately preceding the Maturity Date where Physical Settlement applies, the Company shall settle any such conversion on the Maturity Date or, if the Maturity Date is not a Business Day, the next succeeding Business Day, and the Conversion Date shall be deemed to be the second Business Day immediately before such date), or on the second Business Day immediately following the last Trading Day of the Observation Period, if in the case of any other Settlement Method appliesMethod. If any shares of Common Shares Stock are due to a converting Holder, the Company shall issue or cause to be issued, and deliver (or otherwise cause to be deliveredif applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of shares of Common Shares Stock to which such Holder shall be entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and upon receipt of a Company Order, the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company Company, the Conversion Agent or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Shares Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Shares Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 13.0414.04, no adjustment shall be made for dividends on any shares of Common Shares Stock issued upon the conversion of any Note as provided in this Article 1314.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below in this Section 13.02(h), and the Company will not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notesbelow. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common SharesStock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date but prior to the open of business on the immediately following Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided, however, provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business second Scheduled Trading Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, shall receive the full interest payment due on Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date.
(i) The Person in whose name any Common Shares shall be issuable upon conversion shall be treated as a shareholder of record of such shares as of the close of business on the relevant Conversion Date (if Physical Settlement applies to such conversion) or as of the close of business on the last Trading Day of the relevant Observation Period (if Combination Settlement applies to such conversion), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional Common Share upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Common Share issuable upon conversion based on the Daily VWAP for the relevant Conversion Date, in the case of Physical Settlement, or based on the Daily VWAP for the last Trading Day of the relevant Observation Period, in the case of Combination Settlement. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be issuable upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.Regular Rec
Appears in 2 contracts
Sources: Indenture (Alignment Healthcare, Inc.), Indenture (Alignment Healthcare, Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 13.0214.02, Section 13.03(b14.03(b) and Section 13.07(a14.07(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying pay or deliveringdeliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), Common Ordinary Shares, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional Common Ordinary Share in accordance with subsection (k) of this Section 13.02(j) 14.02 (“Physical Settlement”), ) or a combination of cash and Common Ordinary Shares, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional Common Ordinary Share in accordance with subsection (k) of this Section 13.02(j) 14.02 (“Combination Settlement”), at its election, as set forth in this Section 13.02, subject to the requirements of Section 13.0714.02.
(i) All conversions for which the relevant Conversion Date occurs during a Redemption Period shall be settled using the same Settlement MethodPeriod, and all conversions for which the relevant Conversion Date occurs on or after December 1February 15, 2023 2030 shall be settled using the same Settlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs during a Redemption Period and any conversions for which the relevant Conversion Date occurs on or after December 1February 15, 20232030, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates.
(iii) If, in respect of any Conversion Date (or any conversion for which subject to the relevant Conversion Date occurs during a Redemption Period on or after December 1, 2023below proviso), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company shall deliver such Settlement Notice to converting Holders Holders, the Trustee and the Conversion Agent no later than the close of business on the Trading Day immediately following the relevant Conversion Date (orthan, in the case of any conversions conversion (x) of any Notes called (or deemed called) for redemption for which the relevant Conversion Date occurs (A) during a Redemption Period, in the applicable related Redemption Notice Notice, (y) for which the Company has irrevocably elected Physical Settlement pursuant to Section 14.01(b)(ii), in the related notice described in Section 14.01(b)(ii), or (Bz) on or after December 1February 15, 20232030, the Company shall do so no later than February 15, 2030 (such notice in respect of the close of business conversions on or after February 15, 2030, the “Final Settlement Method Election Notice”). The Settlement Method that will apply to any conversion not described in the preceding sentence shall be the applicable Default Settlement Method in effect on the Business Day immediately preceding December 1, 2023Conversion Date for any such conversion. If the Company does not elect a Settlement Method with respect to any conversion prior to the deadline set forth in the immediately preceding sentencefirst sentence of this Section 14.02(a)(iii), then the Company shall no longer have the right to elect a Settlement Method and the Company shall be deemed to have elected the Default Settlement Method in with respect of to such conversionconversion or period, as applicable. Such Settlement Notice, if provided, Notice shall specify the relevant Settlement Method and, and in the case of an election of Combination Settlement, the applicable relevant Settlement Notice shall indicate the Specified Dollar AmountAmount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. For the avoidance of doubt, the Company’s failure to so select timely elect a Settlement Method or specify the applicable Specified Dollar Amount when so permitted shall not constitute a Default or Event of Default under this Indenture or the NotesIndenture. By The Default Settlement Method will initially be Physical Settlement. The Company may, by written notice to the Holders, the Company may Trustee and the Conversion Agent (if other than the Trustee), on or before February 15, 2030, change the Default Settlement Method or elect to irrevocably fix the Settlement Method to any permitted Settlement Method, except it may not change the Default Settlement Method during any Redemption Period (in respect that the Company is then permitted to elect, including Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes converted of $1,000 or with a Conversion Date occurring during such Redemption Period) or on or after December 1, 2023 (in respect an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes converted at or above any specific amount set forth in such election notice, that will apply to all Note conversions with a Conversion Date that occurs is on or after December 1the date the Company sends such notice. If the Company changes the Default Settlement Method or elects to irrevocably fix the Settlement Method as described above, 2023then the Company shall concurrently either post the Default Settlement Method or fixed Settlement Method, as applicable, on the Company’s website or disclose the same in a Current Report on Form 6-K (or any successor form) that is filed with the Commission. Notwithstanding the foregoing, no such change in the Default Settlement Method or irrevocable election will affect any Settlement Method theretofore elected (or deemed to be elected) with respect to any Conversion Date that has occurred prior to the date of such publication or filing (and in case the Company chooses to use both methods to notify Holders, the earlier date of such publication or filing, if on different dates) pursuant to this Section 14.02. For the avoidance of doubt, such change or election (as the case may be), if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to the provisions described in Section 10.01(i). However, the Company may nonetheless choose to execute such an amendment at its option.
(iv) The cash, Common Ordinary Shares or combination of cash and Common Ordinary Shares in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows follows:
(A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted:
(A) if Physical Settlement applies to such conversion, converted a number of Common Ordinary Shares equal to the Conversion Rate in effect on the Conversion Date for such conversionDate;
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement applies to such conversionSettlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 25 30 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement applies to such conversionSettlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 25 30 consecutive Trading Days during the related Observation Period. If more than one Note is surrendered for conversion at any one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes surrendered.
(v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional Common Ordinary Share, if any, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the sameDaily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional Ordinary Shares. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) (W) Subject to Section 13.02(e14.02(e), before in the case of a Global Note, in order for any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the Applicable Procedures procedures of the Depositary in effect at that time and, if required, pay funds equal to interest any Special Interest payable on the next Special Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(i) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any Common Shares to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and pay all transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 13 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 14.02. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 13.03(b) and Section 13.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if Physical Settlement applies, or on the second Business Day immediately following the last Trading Day of the Observation Period, if any other Settlement Method applies. If any Common Shares are due to a converting Holder, the Company shall issue and deliver (or otherwise cause to be delivered) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of Common Shares to which such Holder shall be entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any Common Shares upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the Common Shares being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 13.04, no adjustment shall be made for dividends on any Common Shares issued upon the conversion of any Note as provided in this Article 13.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interesttaxes, if any, except as set forth below in this required pursuant to Section 13.02(h14.02(e), and the Company will not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes. The Company’s settlement exercise of the full Conversion Obligation such conversion right shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and Common Shares, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided, however, that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, shall receive the full interest payment due on Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Dateirrevocable.
(i) The Person in whose name any Common Shares shall be issuable upon conversion shall be treated as a shareholder of record of such shares as of the close of business on the relevant Conversion Date (if Physical Settlement applies to such conversion) or as of the close of business on the last Trading Day of the relevant Observation Period (if Combination Settlement applies to such conversion), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional Common Share upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Common Share issuable upon conversion based on the Daily VWAP for the relevant Conversion Date, in the case of Physical Settlement, or based on the Daily VWAP for the last Trading Day of the relevant Observation Period, in the case of Combination Settlement. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be issuable upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 2 contracts
Sources: Indenture (Palo Alto Networks Inc), Indenture (CyberArk Software Ltd.)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 13.0214.02, Section 13.03(b14.03(b) and Section 13.07(a14.07(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying or delivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount Capitalized Principal Amount of Notes being converted, cash (“Cash Settlement”), shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Physical Settlement”), ) or a combination of cash and shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Combination Settlement”), at its election, as set forth in this Section 13.0214.02. Notwithstanding the foregoing or anything else in this Indenture or the Notes, subject the Company shall be required to (and shall otherwise be deemed to) elect Cash Settlement in respect of all Notes submitted for conversion unless and until the requirements of Section 13.07Authorized Share Effective Date has occurred.
(i) (x) All conversions of Called Notes for which the relevant Conversion Date occurs during a the related Redemption Period shall be settled using the same Settlement Method, and (y) all conversions for which the relevant Conversion Date occurs on or after December 1February 28, 2023 2026, shall be settled using the same Settlement Method.
(ii) Except for any such conversions for which the relevant Conversion Date occurs during a Redemption Period and any conversions for which the relevant Conversion Date occurs on or after December 1February 28, 20232026, and except to the extent the Company elects Physical Settlement to apply pursuant to Section 14.01(b)(ii) in a notice as described in such Section, the Company shall use the same Settlement Method for all conversions with occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with that occur on different Conversion Dates.
(iii) If, in respect of any Conversion Date (or any conversion for which one of the relevant Conversion Date occurs during a Redemption Period on or after December 1periods described below, 2023as the case may be), the Company elects to a Settlement Method, the Company shall deliver a notice (the “Settlement Notice”) of the relevant Settlement Method so elected in respect of such Conversion Date (or such period, as the case may be), the Company shall deliver such Settlement Notice ) to converting Holders (with a copy to the Trustee and the Conversion Agent (if other than the Trustee)) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of (w) any conversions of any Called Notes for which the relevant Conversion Date occurs (A) during a the related Redemption Period, in the applicable related Redemption Notice or Notice, (Bx) any conversions of Notes for which the relevant Conversion Date occurs on or after December 1February 28, 20232026, no later than the close of business on the Business Day immediately preceding December 1February 28, 20232026, (y) any conversion for which the Company has irrevocably elected Physical Settlement to apply pursuant to Section 14.01(b)(ii) in a notice as described in such Section or (z) any conversion for which the Company has irrevocably elected Combination Settlement, with a certain Specified Dollar Amount or a Minimum Specified Amount per $1,000 Capitalized Principal Amount of Notes, to apply pursuant to the provisions of this Section 14.02(a)(iii), as described in this Section 14.02(a)(iii)). If the Company does not timely elect a Settlement Method with respect to any conversion prior to the deadline set forth in the immediately preceding sentence, then the Company shall no longer have the right to elect Cash Settlement or Physical Settlement for such conversion or during such period and the Company shall be deemed to have elected the Default Combination Settlement Method in respect of such conversionits Conversion Obligation, and the Specified Dollar Amount per $1,000 Capitalized Principal Amount of Notes shall be equal to $1,000. Such Settlement Notice, if provided, Notice shall specify the relevant Settlement Method and, and in the case of an election of Combination Settlement, the applicable relevant Settlement Notice shall indicate the Specified Dollar AmountAmount per $1,000 Capitalized Principal Amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a timely notify converting Holders of the Specified Dollar Amount per $1,000 principal amount Capitalized Principal Amount of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount Capitalized Principal Amount of Notes shall be deemed to be $1,000. By written notice to the Holders (with a copy to the Trustee and the Conversion Agent (if other than the Trustee)), the Company may, prior to February 28, 2026, at its option, elect to irrevocably fix the Settlement Method to any Settlement Method that the Company is then permitted to elect, including Combination Settlement with a Specified Dollar Amount per $1,000 Capitalized Principal Amount of Notes of $1,000 or with an ability to continue to set the Specified Dollar Amount per $1,000 Capitalized Principal Amount of Notes at or above a specific amount (the “Minimum Specified Amount”) set forth in such election notice. If the Company irrevocably elects Combination Settlement with an ability to continue to set the Specified Dollar Amount per $1,000 Capitalized Principal Amount of Notes at or above a specific amount, the Company shall send written notice to Holders converting their Notes, the Trustee and the Conversion Agent of such Specified Dollar Amount no later than the relevant deadline for election of a Settlement Method as described in this Section 14.02(a)(iii), or, if the Company does not timely notify Holders, such Specified Dollar Amount shall be the Minimum Specified Amount set forth in the election notice, unless no Minimum Specified Amount was set forth in the election notice, in which case such Specified Dollar Amount shall be $1,000 per $1,000 Capitalized Principal Amount of Notes. The irrevocable election shall apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such notice; provided that no such election will affect any Settlement Method theretofore elected (or deemed to be elected) with respect to any Note. For the avoidance of doubt, such an irrevocable election, if made, shall be effective without the Company’s failure need to so select a Settlement Method or Specified Dollar Amount when so permitted shall not constitute a Default or Event of Default under amend this Indenture or the Notes, including pursuant to Section 10.01(i). By notice to the HoldersHowever, the Company may change nonetheless choose to execute such an amendment at its option. If the Default Company irrevocably fixes the Settlement Method pursuant to any permitted Settlement Methodthe provisions in this Section 14.02(a)(iii), except it may not change the Default and such Settlement Method during any Redemption Period (in respect of Notes converted is not Combination Settlement with a Conversion Date occurring during Specified Dollar Amount of $1,000 per $1,000 Capitalized Principal Amount of Notes, then, concurrently with providing written notice to Holders of such Redemption Periodelection, the Company shall either post the fixed Settlement Method on its website or disclose the same in a current report on Form 8-K (or any successor form) or on or after December 1, 2023 (in respect of Notes converted that is filed with a Conversion Date that occurs on or after December 1, 2023)the Commission.
(iv) The cash, shares of Common Shares Stock or combination of cash and shares of Common Shares Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows (for the avoidance of doubt, with pro-ration for any portion of the Capitalized Principal Amount subject to conversion that is not an integral multiple of $1,000):
(A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount Capitalized Principal Amount of Notes being converted:
(A) if Physical Settlement applies to such conversion, converted a number of shares of Common Shares Stock equal to the Conversion Rate in effect on the Conversion Date for such conversionDate;
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement applies to such conversionSettlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount Capitalized Principal Amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 25 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement applies to such conversionSettlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount Capitalized Principal Amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 25 consecutive Trading Days during the related Observation Period.
(v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Share, if anyStock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the sameDaily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 13.02(e14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the Applicable Procedures procedures of the Depositary in effect at that time for converting a beneficial interest in a Global Note and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h) (and, if required, pay all transfer or similar taxes, if any, as set forth in Section 14.02(d) and Section 14.02(e)) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Shares Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to any accrued interest that has not been capitalized and is payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h). The Trustee (and and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 13 14 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Holder ▇▇▇▇▇▇ has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 14.0215.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 13.03(b14.03(b) and Section 13.07(a14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement appliesSettlement, or on the second Business Day immediately following the last Trading Day of the relevant Observation Period, if in the case of any other Settlement Method appliesMethod; provided that, with respect to any Conversion Date occurring during a Redemption Period or after the Regular Record Date immediately preceding the Maturity Date, the Company will settle any such conversion for which Physical Settlement is applicable on the relevant Redemption Date or the Maturity Date, as applicable. If any shares of Common Shares Stock are due to a converting HolderHolders, the Company shall issue and deliver (or otherwise cause to be delivered) to the Conversion Agent or issued, and deliver to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common Shares Stock to which such Holder shall be entitled, in book-entry format through the Depositary, entitled in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax or other similar governmental charge due on the issue any issuance of any shares of Common Shares Stock upon conversion, unless the tax is due because the Holder requests any such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent or the Company’s stock transfer agent, as applicable, may refuse to deliver the certificates representing the shares of Common Shares Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder ▇▇▇▇▇▇ in accordance with the immediately preceding sentence.
(f) Except as provided in Section 13.0414.04, no adjustment shall be made for dividends on any shares of Common Shares Stock issued upon the conversion of any Note as provided in this Article 1314.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for any accrued and unpaid interest, if anyinterest that has not been paid or capitalized, except as set forth below in this Section 13.02(h), and the Company will not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notesbelow. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount Capitalized Principal Amount of the Note and any accrued and unpaid interest, if anyinterest that has not been paid or capitalized, to, but not including, the relevant Conversion Date. As a result, any accrued and unpaid interest, if any, interest that has not been paid or capitalized to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common SharesStock, accrued and unpaid interest that has not been paid or capitalized will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and on or prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on in cash at the corresponding Cash Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided, however, that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) Rate as if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to had elected the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, shall receive the full interest payment due on Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date.
(i) The Person in whose name any Common Shares shall be issuable upon conversion shall be treated as a shareholder of record of such shares as of the close of business on the relevant Conversion Date (if Physical Settlement applies to such conversion) or as of the close of business on the last Trading Day of the relevant Observation Period (if Combination Settlement applies to such conversion), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional Common Share upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Common Share issuable upon conversion based on the Daily VWAP for the relevant Conversion Date, in the case of Physical Settlement, or based on the Daily VWAP for the last Trading Day of the relevant Observation Period, in the case of Combination Settlement. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be issuable upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.Cash Met
Appears in 1 contract
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 13.0214.02, Section 13.03(b14.03(b) and Section 13.07(a14.07(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying or delivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Class A Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Class A Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Physical Settlement”), ) or a combination of cash and shares of Class A Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Class A Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Combination Settlement”), at its election, as set forth in this Section 13.02, subject to the requirements of Section 13.0714.02.
(i) All conversions for which the relevant Conversion Date occurs during a Redemption Period shall be settled using the same Settlement Method, and all conversions for which the relevant Conversion Date occurs on or after December May 1, 2023 2026 shall be settled using the same Settlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs during a Redemption Period and any conversions for which the relevant Conversion Date occurs on or after December May 1, 20232026, the Company shall use the same Settlement Method for all conversions with occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with that occur on different Conversion Dates. By written notice to the Holders, the Company may, prior to May 1, 2026, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through Combination Settlement with a specified dollar amount per $1,000 principal amount of Notes of $1,000 for all Conversion Dates occurring subsequent to delivery of such notice.
(iii) If, in respect of any Conversion Date (or in the case of any conversion conversions for which the relevant Conversion Date occurs during a Redemption Period on or after December May 1, 20232026, no later than the close of business on the Business Day immediately preceding May 1, 2026), the Company elects to a Settlement Method, the Company shall deliver a written notice (the “Settlement Notice”) of the relevant Settlement Method so elected in respect of such Conversion Date (or such period, as the case may be)) to converting Holders, the Company shall deliver such Settlement Notice to converting Holders Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions of any Notes for which the relevant Conversion Date occurs (A) during a Redemption Period, in the applicable Redemption Notice or (B) on or after December May 1, 20232026, no later than the close of business on the Business Day immediately preceding December May 1, 20232026). If the Company does not timely elect a Settlement Method with respect to any conversion prior to the deadline set forth in the immediately preceding sentence, then the Company shall no longer have the right to elect Cash Settlement or Physical Settlement for such conversion or during such period and the Company shall be deemed to have elected the Default Combination Settlement Method in respect of such conversionits Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice, if provided, Notice shall specify the relevant Settlement Method and, and in the case of an election of Combination Settlement, the applicable relevant Settlement Notice shall indicate the Specified Dollar AmountAmount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. For the avoidance of doubt, the Company’s failure to so select a Settlement Method or Specified Dollar Amount when so permitted shall not constitute a Default or Event of Default under this Indenture or the Notes. By notice to the Holders, the Company may change the Default Settlement Method to any permitted Settlement Method, except it may not change the Default Settlement Method during any Redemption Period (in respect of Notes converted with a Conversion Date occurring during such Redemption Period) or on or after December 1, 2023 (in respect of Notes converted with a Conversion Date that occurs on or after December 1, 2023).
(iv) The cash, shares of Class A Common Shares Stock or combination of cash and shares of Class A Common Shares Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows follows:
(A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted:
(A) if Physical Settlement applies to such conversion, converted a number of shares of Class A Common Shares Stock equal to the Conversion Rate in effect on the Conversion Date for such conversionDate;
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement applies to such conversionSettlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 25 40 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement applies to such conversionSettlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 25 40 consecutive Trading Days during the related Observation Period.
(v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Class A Common Share, if anyStock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the sameDaily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Class A Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 13.02(e14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the Applicable Procedures in effect at that time for converting a beneficial interest in a Global Note and, if required, pay funds equal to the interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h) (and, if required, pay all transfer or similar taxes, if any, as set forth in Section 14.02(e)) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Class A Common Shares Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to the interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h). The Trustee (and and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 13 14 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 14.0215.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 13.03(b14.03(b) and Section 13.07(a14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement applies(provided that, with respect to any Conversion Date occurring on or after May 1, 2026, the Company shall settle any such conversion on the Maturity Date), or on the second Business Day immediately following the last Trading Day of the relevant Observation Period, if in the case of any other Settlement Method appliesMethod. If any shares of Class A Common Shares Stock are due to a converting HolderHolders, the Company shall issue and deliver (or otherwise cause to be delivered) to the Conversion Agent or issued, and deliver to such Holder, or such Holder’s nominee or nominees, the full number of shares of Class A Common Shares Stock to which such Holder shall be entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax or other similar governmental charge due on the issue any issuance of any shares of Class A Common Shares Stock upon conversion, unless the tax is due because the Holder requests any such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Class A Common Shares Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 13.0414.04, no adjustment shall be made for dividends on any shares of Class A Common Shares Stock issued upon the conversion of any Note as provided in this Article 1314.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below in the fifth sentence of this Section 13.02(h), and the Company will not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notesparagraph. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not includingexcluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not includingexcluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Class A Common SharesStock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided, however, provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following succeeding the corresponding Interest Payment Date; or (43) to the extent of any Defaulted Amountsoverdue interest, if any Defaulted Amounts overdue interest exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, Date shall receive the full interest payment due on the Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date.
(i) The Person in whose name the certificate for any shares of Class A Common Shares shall be issuable Stock delivered upon conversion is registered shall be treated as a shareholder stockholder of record of such shares as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement applies to such conversionSettlement) or as of the close of business on the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement applies to such conversionSettlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional share of Class A Common Share Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Class A Common Share Stock issuable upon conversion based on the Daily VWAP for on the relevant Conversion Date, Date (in the case of Physical Settlement, ) or based on the Daily VWAP for on the last Trading Day of the relevant Observation Period, Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be issuable issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Sources: Indenture (Alteryx, Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 13.0214.02, Section 13.03(b14.03(b) and Section 13.07(a14.07(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying pay or deliveringdeliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Physical Settlement”), ) or a combination of cash and shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Combination Settlement”), at its election, as set forth in this Section 13.02, subject to the requirements of Section 13.0714.02.
(i) All conversions for which the relevant Conversion Date occurs on or after October 15, 2024 or occurs during a Redemption Period shall be settled using the same Settlement Method, and all conversions for which the relevant Conversion Date occurs on or after December 1, 2023 shall be settled using the same Settlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs on or after October 15, 2024 or occurs during a Redemption Period and any conversions for which the relevant Conversion Date occurs on or after December 1, 2023Period, the Company shall use the same Settlement Method for all conversions occuring with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates.
(iii) If, If the Company elects a Settlement Method in respect of any a Conversion Date (or any conversion for which the relevant Conversion Date occurs in respect of conversions occurring on or after October 15, 2024 or during a Redemption Period on or after December 1Period, 2023as the case may be), the Company elects to shall deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such periodin respect of conversions ocurring on or after October 15, 2024 or during a Redemption Period, as the case may be), to the Company shall deliver such Settlement Notice to Trustee, the Conversion Agent (if other than the Trustee) and converting Holders no later than than:
(A) if the relevant Conversion Date occurs prior to October 15, 2024, the close of business on the Trading Day immediately following the relevant Conversion Date Date;
(orB) subject to clause (C) immediately below, in the case of any conversions of any Notes for which if the relevant Conversion Date occurs (A) during a Redemption Period, in the applicable Redemption Notice or (B) on or after December 1October 15, 20232024, no later than the close of business on October 15, 2024; and
(C) if the Business Day immediately preceding December 1relevant Conversion Date occurs during a Redemption Period (including any redemption that occurs on or after October 15, 2023. 2024), the Redemption Notice Date.
(iv) If the Company does not elect a Settlement Method with respect to any conversion prior to the applicable deadline set forth in clause (iii) above, the immediately preceding sentence, then Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Default Settlement Method Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000, in each case, in respect of such conversionConversion Date. Such Settlement Notice, if provided, Notice shall specify the relevant Settlement Method and, and in the case of an election of Combination Settlement, the applicable relevant Settlement Notice shall indicate the Specified Dollar AmountAmount per $1,000 principal amount of Notes. If the Company timely delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. For the avoidance of doubt, the Company’s failure to so select a Settlement Method or Specified Dollar Amount when so permitted shall not constitute a Default or Event of Default under this Indenture or the Notes. By notice Notwithstanding anything to the Holderscontrary in this Section 14.02(a), the Company may change shall be permitted to irrevocably elect Physical Settlement in any Certain Distributions Notification as set forth in Section 14.01(b)(iii) and any such election shall be applicable to conversions with Conversion Dates that occur from the Default Settlement Method to any permitted Settlement Method, except it may not change date of the Default Settlement Method during any Redemption Certain Distributions Notification until the related Certain Distributions Conversion Period (in respect of Notes converted with a Conversion Date occurring during such Redemption Period) or on or after December 1, 2023 (in respect of Notes converted with a Conversion Date that occurs on or after December 1, 2023)End Date.
(ivv) The cash, shares of Common Shares Stock or combination of cash and shares of Common Shares Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows follows:
(A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted:
(A) if Physical Settlement applies to such conversion, converted a number of shares of Common Shares Stock equal to the Conversion Rate in effect on the Conversion Date for such conversionDate;
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement applies to such conversionSettlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 25 40 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement applies to such conversionSettlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 25 40 consecutive Trading Days during the related Observation Period.
(vvi) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Share, if anyStock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the sameDaily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 13.02(e14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the Applicable Procedures procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled and, if required, pay all transfer or similar taxes, if any, as set forth in Section 13.02(h14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Shares Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and documents, (4) if required, pay funds equal to the interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h)14.02(h) and (5) if required, pay all transfer or similar taxes. The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 13 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered for conversion by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 14.0215.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 13.03(b) and Section 13.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if Physical Settlement applies, or on the second Business Day immediately following the last Trading Day of the Observation Period, if any other Settlement Method applies. If any Common Shares are due to a converting Holder, the Company shall issue and deliver (or otherwise cause to be delivered) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of Common Shares to which such Holder shall be entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any Common Shares upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the Common Shares being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 13.04, no adjustment shall be made for dividends on any Common Shares issued upon the conversion of any Note as provided in this Article 13.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below in this Section 13.02(h), and the Company will not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and Common Shares, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided, however, that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, shall receive the full interest payment due on Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date.
(i) The Person in whose name any Common Shares shall be issuable upon conversion shall be treated as a shareholder of record of such shares as of the close of business on the relevant Conversion Date (if Physical Settlement applies to such conversion) or as of the close of business on the last Trading Day of the relevant Observation Period (if Combination Settlement applies to such conversion), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional Common Share upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Common Share issuable upon conversion based on the Daily VWAP for the relevant Conversion Date, in the case of Physical Settlement, or based on the Daily VWAP for the last Trading Day of the relevant Observation Period, in the case of Combination Settlement. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be issuable upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Sources: First Supplemental Indenture (Guidewire Software, Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 13.02, Section 13.03(b) and Section 13.07(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying pay or deliveringdeliver (or otherwise cause to be delivered), as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common SharesStock, together, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with Section 13.02(j) (“Physical Settlement”), or a combination of cash and shares of Common SharesStock, together, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with Section 13.02(j) (“Combination Settlement”), at its election, as set forth in this Section 13.02, subject to the requirements of Section 13.07.
(i) All conversions for which the relevant Conversion Date occurs during on or after the date of the Company’s issuance of a Redemption Period shall be settled using Notice with respect to any Notes and prior to the same Settlement Methodrelated Redemption Date, and all conversions for which the relevant Conversion Date occurs on or after December 1November 3, 2023 2025 shall be settled using the same Settlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs during after the Company’s issuance of a Redemption Period Notice with respect to the Notes but prior to the related Redemption Date and any conversions for which the relevant Conversion Date occurs on or after December 1November 3, 20232025, and except to the extent the Company elects Physical Settlement to apply pursuant to Section 13.01(b)(ii), the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates.
(iii) If, in respect of any Conversion Date (or any conversion for which one of the relevant Conversion Date occurs during a Redemption Period on or after December 1periods described in the third immediately succeeding set of parentheses, 2023as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company shall deliver such Settlement Notice to converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions (x) of any Notes for which the relevant Conversion Date occurs (A) during on or after the date of issuance of a Redemption PeriodNotice and prior to the related Redemption Date, in the applicable such Redemption Notice or (B) on or after December 1November 3, 20232025, no later than the close of business on the Business Day immediately preceding December 1November 3, 20232025, (y) for which the Company has irrevocably elected Physical Settlement pursuant to Section 13.01(b)(ii), in the related notice described therein or (z) for which the Company has made an Irrevocable Election pursuant to this Section 13.02(a)(iii), in the Company’s notice of such Irrevocable Election to the Holders). If the Company does not elect a Settlement Method with respect to any conversion prior to the deadline set forth in the immediately preceding sentence, then the Company shall be deemed to have elected the Default Settlement Method in respect of such conversion. Such Settlement Notice, if provided, shall specify the relevant Settlement Method and, in the case of Combination Settlement, the applicable Specified Dollar Amount. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. For the avoidance of doubt, the Company’s failure to so select a Settlement Method or Specified Dollar Amount when so permitted shall not constitute a Default or Event of Default under this Indenture or the Notes. By Subject to Section 13.02(a)(iv), by notice to the HoldersHolders (with a copy to the Trustee and the Conversion Agent), the Company may change the Default Settlement Method to any permitted Settlement Method. In addition, except it subject to Section 13.02(a)(iv), (A) the Company may, by notice to the Holders (with a copy to the Trustee and the Conversion Agent), which notice shall be delivered by filing a Current Report on Form 8-K (or successor form thereto), irrevocably elect to either (x) fix the Settlement Method to any Settlement Method that the Company is then permitted to elect; or (y) eliminate the Company’s right to elect one or more particular Settlement Methods (each, an “Irrevocable Election”); and (B) any Irrevocable Election, if made, will apply to all Note conversions with a Conversion Date that is on or after the date the Company sends notice of such Irrevocable Election to the Holders. For the avoidance of doubt, any Irrevocable Election, if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(i). However, the Company may nonetheless choose to execute such an amendment at its option.
(iv) Notwithstanding anything to the contrary in Section 13.02(a)(iii), the Company may not change the Default Settlement Method or make an Irrevocable Election (x) during any Redemption Period (in respect of Notes converted with a Conversion Date occurring during such Redemption Period), (y) for any conversions for which the Company has irrevocably elected Physical Settlement to apply pursuant to Section 13.01(b)(ii) or (z) on or after December 1November 3, 2023 2025 (in respect of Notes converted with a Conversion Date that occurs on or after December 1November 3, 20232025).
(ivv) The cash, shares of Common Shares Stock or combination of cash and shares of Common Shares Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows in respect of each $1,000 principal amount of Notes being converted:
(A) if Physical Settlement applies to such conversion, a number of shares of Common Shares Stock equal to the Conversion Rate in effect on the Conversion Date for such conversion;
(B) if Cash Settlement applies to such conversion, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 25 40 consecutive VWAP Trading Days during the related Observation Period; and
(C) if Combination Settlement applies to such conversion, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 25 40 consecutive VWAP Trading Days during the related Observation Period.
(v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional Common Share, if any, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the same. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 13.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the Applicable Procedures procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Shares Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 13 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered for conversion by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 14.02. If Subject to any procedures or requirements of the applicable Depositary in the case of any Global Note, if more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 13.03(b) and Section 13.07(a), the Company shall pay or deliverdeliver (or otherwise cause to be delivered), as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if Physical Settlement applies, or on the second Business Day immediately following the last VWAP Trading Day of the Observation Period, if any other Settlement Method applies; provided, however, that the Company shall settle on the Maturity Date (or, if the Maturity Date is not a Business Day, the immediately following Business Day) any conversions to which Physical Settlement applies and whose Conversion Date occurs on or after January 15, 2026. If any shares of Common Shares Stock are due to a converting Holder, the Company shall issue and deliver (or otherwise cause to be delivered) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of shares of Common Shares Stock to which such Holder shall be entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Shares Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Shares Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 13.04, no adjustment shall be made for dividends on any shares of Common Shares Stock issued upon the conversion of any Note as provided in this Article 13.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below in this Section 13.02(h), and the Company will not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common SharesStock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided, however, that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record as of the close of business on the Regular Record Date immediately preceding the Maturity Date, or a Fundamental Change Repurchase Date or Redemption Date referred to above, shall receive the full interest payment due on Maturity the corresponding Interest Payment Date in cash regardless of whether their Notes have been converted following such Regular Record Date, and the converting Holder shall not be required to make a corresponding payment.
(i) The Person in whose name any shares of Common Shares Stock shall be issuable upon conversion shall be treated as a shareholder stockholder of record of such shares as of the close of business on the relevant Conversion Date (if Physical Settlement applies to such conversion) or as of the close of business on the last VWAP Trading Day of the relevant Observation Period (if Combination Settlement applies to such conversion), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional share of Common Share Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Share Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion DateDate (or, if such conversion date is not a VWAP Trading Day, the immediately preceding VWAP Trading Day), in the case of Physical Settlement, or based on the Daily VWAP for the last VWAP Trading Day of the relevant Observation Period, in the case of Combination Settlement. For Subject to any procedures or requirements of the applicable Depositary in the case of any Global Note, for each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be issuable deliverable upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Sources: Indenture (Repay Holdings Corp)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 13.0214.02, Section 13.03(b14.03(b) and Section 13.07(a14.07(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying pay or deliveringdeliver, as the case may be, to the converting Holder, in respect of each $US$1,000 principal amount of Notes being converted, cash (“Cash Settlement”), Common SharesADSs, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional Common Share ADSs in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Physical Settlement”), ) or a combination of cash and Common SharesADSs, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional Common Share ADS in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Combination Settlement”), at its election, as set forth in this Section 13.02, subject to the requirements of Section 13.0714.02.
(i) All conversions for which the relevant Conversion Date occurs during after the Company’s issuance of a Redemption Period shall be settled using Notice with respect to the same Settlement MethodNotes and prior to the related Redemption Date, and all conversions for which the relevant Conversion Date occurs on or after December October 1, 2023 2024 shall be settled using the same Settlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs during after the Company’s issuance of a Redemption Period Notice with respect to the Notes but prior to the related Redemption Date, and any conversions for which the relevant Conversion Date occurs on or after December October 1, 20232024, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates.
(iii) If, in respect of any Conversion Date (or any conversion for which the relevant Conversion Date occurs during a Redemption Period on or after December 1period described in the third immediately succeeding set of parentheses, 2023as the case may be), the Company elects to a Settlement Method, the Company shall deliver a written notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be)) to converting Holders, the Company shall deliver such Settlement Notice to converting Holders Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions of any Notes for which the relevant Conversion Date occurs (A) during after the date of issuance of a Redemption PeriodNotice with respect to the Notes and prior to the related Redemption Date, in the applicable such Redemption Notice or (B) on or after December October 1, 20232024, no later than the close of business on the Business Day immediately preceding December October 1, 20232024). If the Company does not elect a Settlement Method with respect to any conversion prior to the deadline set forth in the immediately preceding sentence, then the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected the Default Combination Settlement Method in respect of such conversionits Conversion Obligation, and the Specified Dollar Amount per US$1,000 principal amount of Notes shall be equal to US$1,000. Such Settlement Notice, if provided, Notice shall specify the relevant Settlement Method and, and in the case of an election of Combination Settlement, the applicable relevant Settlement Notice shall indicate the Specified Dollar AmountAmount per US$1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $US$1,000 principal amount of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $US$1,000 principal amount of Notes shall be deemed to be $US$1,000. For the avoidance of doubt, the Company’s failure to so select a Settlement Method or Specified Dollar Amount when so permitted shall not constitute a Default or Event of Default under this Indenture or the Notes. By notice to the Holders, the Company may change the Default Settlement Method to any permitted Settlement Method, except it may not change the Default Settlement Method during any Redemption Period (in respect of Notes converted with a Conversion Date occurring during such Redemption Period) or on or after December 1, 2023 (in respect of Notes converted with a Conversion Date that occurs on or after December 1, 2023).
(iv) The cash, Common Shares ADSs or a combination of cash and Common Shares ADSs, as applicable, in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows follows:
(A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $US$1,000 principal amount of Notes being converted:
(A) if Physical Settlement applies to such conversion, converted a number of Common Shares ADSs equal to the Conversion Rate in effect on the Conversion Date for such conversionDate;
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement applies to such conversionSettlement, the Company shall pay to the converting Holder in respect of each $US$1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 25 40 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement applies to such conversionSettlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $US$1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 25 40 consecutive Trading Days during the related Observation Period.
(v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional Common Share, if anyADS, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) in writing of the sameDaily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional ADSs. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 13.02(e14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the Applicable Procedures procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an a duly completed irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any Common Shares ADSs to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 13 14 on the Conversion Date Date, or promptly following instructions for such conversion. No Notice of Conversion with respect to any Notes may be delivered, and no Notes may be surrendered for conversion conversion, by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice or Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice or Repurchase Notice, as the case may be, in accordance with Section 14.0215.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 13.03(b14.03(b) and Section 13.07(a14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement appliesSettlement, or on the second Business Day immediately following the last Trading Day of the relevant Observation Period, if in the case of any other Settlement Method appliesMethod. If any Common Shares ADSs are due to a converting Holder, the Company shall issue or cause to be issued, and deliver (or otherwise cause to be deliveredif applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of Common Shares ADSs to which such Holder shall be entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any certificated Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp stamp, issue, transfer or similar issue or transfer tax due on the issue delivery of any Common Shares ADSs upon conversionconversion of the Notes or the issuance of the underlying Class A Ordinary Shares, unless the tax is due because the Holder requests such shares ADSs (or the Class A Ordinary Shares) to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver Company shall pay the certificates representing ADS Depositary’s fees for the Common Shares being issued in a name other than issuance of the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentenceADSs.
(f) Except as provided in Section 13.0414.04, no adjustment shall be made for dividends on any Common Shares ADSs issued upon the conversion of any Note as provided in this Article 1314.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the ADS Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below in this Section 13.02(h), and the Company will not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notesbelow. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and Common SharesADSs, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds an amount in U.S. dollars equal to the amount of interest payable on the Notes so convertedconverted (regardless of whether the converting Holder was the holder of record on the corresponding Regular Record Date); provided, however, provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately following succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the third Business Day immediately succeeding such Interest Payment Date); (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the second Business Day immediately succeeding such Interest Payment Date); or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for Neither the avoidance of doubt, all Holders of record on Trustee nor the Regular Record Date immediately preceding Conversion Agent (if other than the Maturity Date, shall receive Trustee) will have any duty to determine or verify determination by the full interest payment due on Maturity Date in cash regardless Company of whether their Notes any of the conditions to conversion have been converted following such Regular Record Datesatisfied.
(i) The Person in whose name any Common Shares ADSs shall be issuable upon conversion shall be treated as a shareholder stockholder of record of such shares as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement applies to such conversionSettlement) or as of the close of business on the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement applies to such conversionSettlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional Common Share ADSs upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Common Share ADS issuable upon conversion based on the Daily VWAP for the relevant Conversion Date, Date (in the case of Physical Settlement, ) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period, Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares ADSs that shall be issuable issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Sources: Indenture (iQIYI, Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 13.0214.02, Section 13.03(b14.03(b) and Section 13.07(a14.07(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying or delivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Physical Settlement”), ) or a combination of cash and shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Combination Settlement”), at its election, as set forth in this Section 13.02, subject to the requirements of Section 13.0714.02.
(i) All conversions for which the relevant Conversion Date occurs during after the Company’s issuance of a Notice of Redemption Period shall be settled using with respect to the same Settlement MethodNotes and prior to the related Redemption Date, and all conversions for which the relevant Conversion Date occurs on or after December 1, 2023 2022, shall be settled using the same Settlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs during after the Company’s issuance of a Notice of Redemption Period with respect to the Notes but prior to the related Redemption Date, and any conversions for which the relevant Conversion Date occurs on or after December 1, 20232022, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates.
(iii) If, in respect of any Conversion Date (or any conversion conversions for which the relevant Conversion Date occurs during after the Company’s issuance of a Notice of Redemption Period with respect to the Notes and prior to the related Redemption Date, or for which the relevant Conversion Date occurs on or after December 1, 20232022), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company Company, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions of any Notes for which the relevant Conversion Date occurs (Ax) during after the date of issuance of a Notice of Redemption Periodwith respect to the Notes and prior to the related Redemption Date, in the applicable such Notice of Redemption Notice or (By) on or after December 1, 20232022, no later than the close of business on the Business Day immediately preceding December 1, 20232022). If the Company does not elect a Settlement Method with respect to any conversion prior to the deadline set forth in the immediately preceding sentence, then the Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to any conversion on such Conversion Date or during such period, and the Company shall be deemed to have elected the Default Combination Settlement Method in respect of such conversionits Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice, if provided, Notice shall specify the relevant Settlement Method and, and in the case of an election of Combination Settlement, the applicable relevant Settlement Notice shall indicate the Specified Dollar AmountAmount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. For the avoidance of doubt, the Company’s failure to so select a Settlement Method or Specified Dollar Amount when so permitted shall not constitute a Default or Event of Default under this Indenture or the Notes. By notice to the all Holders, the Company may change the Default Settlement Method may, prior to any permitted Settlement Method, except it may not change the Default Settlement Method during any Redemption Period (in respect of Notes converted with a Conversion Date occurring during such Redemption Period) or on or after December 1, 2023 (in 2022, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes converted with a of $1,000 for all Conversion Date that occurs on or after December 1, 2023)Dates occurring subsequent to delivery of such notice.
(iv) The cash, shares of Common Shares Stock or combination of cash and shares of Common Shares Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows follows:
(A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted:
(A) if Physical Settlement applies to such conversion, converted a number of shares of Common Shares Stock equal to the Conversion Rate in effect on the Conversion Date for such conversionDate;
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement applies to such conversionSettlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 25 40 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement applies to such conversionSettlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 25 40 consecutive Trading Days during the related Observation Period.
(v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Share, if anyStock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the sameDaily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 13.02(e14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the Applicable Procedures applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Shares Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 13 14 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 14.0215.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 13.03(b14.03(b) and Section 13.07(a14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement applies(provided that, with respect to any Conversion Date following the Regular Record Date immediately preceding the Maturity Date where Physical Settlement applies to the related conversion, the Company shall settle any such conversion on the Maturity Date), or on the second Business Day immediately following the last Trading Day of the Observation Period, if in the case of any other Settlement Method appliesMethod. If any shares of Common Shares Stock are due to a converting Holder, the Company shall issue or cause to be issued, and deliver (or otherwise cause to be deliveredif applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of shares of Common Shares Stock to which such Holder shall be entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Shares Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Shares Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 13.0414.04, no adjustment shall be made for dividends on any shares of Common Shares Stock issued upon the conversion of any Note as provided in this Article 1314.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below in this Section 13.02(h), and the Company will not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notesbelow. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common SharesStock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided, however, provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, Date shall receive the full interest payment due on the Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date.
(i) The Person in whose name any the shares of Common Shares Stock shall be issuable upon conversion shall be treated as a shareholder stockholder of record of such shares as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement applies to such conversionSettlement) or as of the close of business on the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement applies to such conversionSettlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional share of Common Share Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Share Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date, Date (in the case of Physical Settlement, ) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period, Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be issuable issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Sources: Indenture (MINDBODY, Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 13.0214.02, Section 13.03(b14.03(b) and Section 13.07(a14.07(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying or delivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Physical Settlement”), ) or a combination of cash and shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Combination Settlement”), at its election, as set forth in this Section 13.02, subject to the requirements of Section 13.0714.02.
(i) All conversions for which the relevant Conversion Date occurs during of Notes in connection with a Redemption Period shall be settled using the same Settlement MethodNotice of Redemption, and all conversions for which the relevant Conversion Date occurs on or after December 1October 15, 2023 2035, shall be settled using the same Settlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs during of Notes in connection with a Redemption Period Notice of Redemption, and any conversions for which the relevant Conversion Date occurs on or after December 1October 15, 20232035, and except to the extent the Company has irrevocably elected Physical Settlement pursuant to Section 14.01(b)(ii) in a notice as described in such Section or previously made an Irrevocable Settlement Election with respect to all subsequent conversions of Notes in accordance with Section 14.02(a)(iii), the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates.
(iii) If, in respect of any Conversion Date (or any conversion conversions of Notes in connection with a Notice of Redemption, any conversions for which the relevant Conversion Date occurs during a Redemption Period on or after December 1October 15, 20232035 or for which the Company has irrevocably elected Physical Settlement pursuant to Section 14.01(b)(ii) in a notice as described in such Section), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company shall deliver such Settlement Notice to converting Holders Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of (A) any conversions of Notes in connection with a Notice of Redemption, in the related Notice of Redemption, (B) any conversions of Notes for which the relevant Conversion Date occurs (A) during a Redemption Period, in the applicable Redemption Notice or (B) on or after December 1October 15, 20232035, no later than October 15, 2035 or (C) any conversions for which the close of business on the Business Day immediately preceding December 1Company has irrevocably elected Physical Settlement pursuant to Section 14.01(b)(ii), 2023in a notice as described in such Section). If the Company does not elect a Settlement Method with respect to any conversion prior to the deadline set forth in the immediately preceding sentence, then the Company shall no longer have the right to elect a Settlement Method with respect to any conversion on such Conversion Date or during such period, and the Company shall be deemed to have elected the Default Settlement Method in with respect of to such conversion. Such Settlement Notice, if provided, Notice shall specify the relevant Settlement Method and, and in the case of an election of Combination Settlement, the applicable relevant Settlement Notice shall indicate the Specified Dollar AmountAmount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement (or is deemed to have elected Combination Settlement) in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. For the avoidance of doubt, the Company’s failure to so select timely elect a Settlement Method or specify as applicable a Specified Dollar Amount when so permitted shall not constitute a Default under this Indenture. By notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, from time to time, change the Default Settlement Method prior to October 15, 2035. By notice to all Holders, the Company may, prior to October 15, 2035, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through any Settlement Method that the Company is then permitted to elect, including Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 or Event with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above a specific amount set forth in such election notice (any such election, an “Irrevocable Settlement Election”). If the Company changes the Default under Settlement Method or the Company makes an Irrevocable Settlement Election, in either case, to Combination Settlement with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above a specific amount, the Company will, after the date of such change or election, as the case may be, inform Holders converting their Notes, the Trustee and the Conversion Agent (if other than the Trustee) in writing of such Specified Dollar Amount no later than the relevant deadline for election of a specified Settlement Method as set forth in the immediately preceding paragraph, or, if the Company does not timely notify Holders, such Specified Dollar Amount will be the specific amount set forth in the notice changing the Default Settlement Method or making an Irrevocable Settlement Election, as the case may be, or, if no specific amount was set forth in the relevant notice, such Specified Dollar Amount will be $1,000 per $1,000 principal amount of Notes. A change in the Default Settlement Method or an Irrevocable Settlement Election shall apply to all conversions of Notes with Conversion Dates occurring subsequent to the delivery of such notice (or, in the case of a change in the Default Settlement Method that is not an Irrevocable Settlement Election, unless and until a new notice to change the Default Settlement Method or make an Irrevocable Settlement Election has been delivered pursuant to this Section 14.02(a)(iii)); provided, however, that no such change or election shall affect any Settlement Method theretofore elected (or deemed to be elected) with respect to any Note. For the avoidance of doubt, such an Irrevocable Settlement Election, if made by the Company, shall be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(m). By notice to the HoldersHowever, the Company may change nonetheless choose to execute such an amendment at its option. If the Company changes the Default Settlement Method or if the Company makes an Irrevocable Settlement Election pursuant to any permitted Settlement Methodthis paragraph, except it may not then, concurrently with providing notice to Holders of such change or election, the Company shall either post the Default Settlement Method during or fixed Settlement Method, as the case may be, on its website or disclose the same in a current report on Form 8-K (or any Redemption Period (in respect of Notes converted successor form) that is filed with a Conversion Date occurring during such Redemption Period) or on or after December 1, 2023 (in respect of Notes converted with a Conversion Date that occurs on or after December 1, 2023)the Commission.
(iv) The cash, shares of Common Shares Stock or combination of cash and shares of Common Shares Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows follows:
(A) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted:
(A) if Physical Settlement applies to such conversion, converted a number of shares of Common Shares Stock equal to the Conversion Rate in effect on the Conversion Date for such conversionDate;
(B) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement applies to such conversionSettlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 25 20 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement applies to such conversionSettlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 25 20 consecutive Trading Days during the related Observation Period.
(v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or (if applicable), the Daily Conversion Values, as the case may be, Values (if applicable) and the amount of cash payable in lieu of delivering any fractional share of Common Share, if anyStock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the sameDaily Settlement Amounts (if applicable), the Daily Conversion Values (if applicable) and the amount of cash payable in lieu of delivering any fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 13.02(e14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the Applicable Procedures applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Shares Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 13 14 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Holder H▇▇▇▇▇ has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 14.0215.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 13.03(b14.03(b) and Section 13.07(a14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement appliesSettlement, or on the second Business Day immediately following the last Trading Day of the Observation Period, if in the case of any other Settlement Method appliesMethod. If any shares of Common Shares Stock are due to a converting Holder, the Company shall issue or cause to be issued, and deliver (or otherwise cause to be deliveredif applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of shares of Common Shares Stock to which such Holder shall be entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Shares Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Shares Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 13.0414.04, no adjustment shall be made for dividends on any shares of Common Shares Stock issued upon the conversion of any Note as provided in this Article 1314.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment or shares of Common Stock for accrued and unpaid interest, if any, except as set forth below in this Section 13.02(h), and the Company will not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notesbelow. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common SharesStock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of any interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so convertedconverted on the corresponding Interest Payment Date; provided, however, provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, shall receive the full interest payment due on Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date.
(i) The Person in whose name any Common Shares shall be issuable upon conversion shall be treated as a shareholder of record of such shares as of the close of business on the relevant Conversion Date (if Physical Settlement applies to such conversion) or as of the close of business on the last Trading Day of the relevant Observation Period (if Combination Settlement applies to such conversion), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional Common Share upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Common Share issuable upon conversion based on the Daily VWAP for the relevant Conversion Date, in the case of Physical Settlement, or based on the Daily VWAP for the last Trading Day of the relevant Observation Period, in the case of Combination Settlement. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be issuable upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.busi
Appears in 1 contract
Sources: Indenture (AST SpaceMobile, Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 13.0214.02, Section 13.03(b14.03(b) and Section 13.07(a14.07(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying pay or deliveringdeliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Physical Settlement”), ) or a combination of cash and shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Combination Settlement”), at its election, as set forth in this Section 13.02, subject to the requirements of Section 13.0714.02.
(i) All conversions for which the relevant Conversion Date occurs during a Redemption Period shall be settled using the same Settlement Method, and all conversions for which the relevant Conversion Date occurs on or after December 1November 15, 2023 2021 shall be settled using the same Settlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs during a Redemption Period and any conversions for which the relevant Conversion Date occurs on or after December 1November 15, 20232021, and except to the extent the Company elects Physical Settlement to apply pursuant to Section 14.01(b)(ii), the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates.
(iii) If, in respect of any Conversion Date (or any conversion for which one of the relevant Conversion Date occurs during a Redemption Period on or after December 1periods described in the third immediately succeeding set of parentheses, 2023as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company Company, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions of any Notes (x) for which the relevant Conversion Date occurs (A) during a Redemption Period, in the applicable Redemption Notice or (B) on or after December 1November 15, 20232021, no later than the close of business on the Business Day immediately preceding December 1November 15, 20232021 or (y) for which the Company has irrevocably elected Physical Settlement pursuant to Section 14.01(b)(ii), in the related notice described therein). If the Company does not elect a Settlement Method with respect to any conversion prior to the deadline set forth in the immediately preceding sentence, then the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected the Default Combination Settlement Method in respect of such conversionits Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice, if provided, Notice shall specify the relevant Settlement Method and, and in the case of an election of Combination Settlement, the applicable relevant Settlement Notice shall indicate the Specified Dollar AmountAmount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. For the avoidance of doubt, the Company’s failure to so select a Settlement Method or Specified Dollar Amount when so permitted shall not constitute a Default or Event of Default under this Indenture or the Notes. By notice to the Holders, the Company may change the Default Settlement Method to any permitted Settlement Method, except it may not change the Default Settlement Method during any Redemption Period (in respect of Notes converted with a Conversion Date occurring during such Redemption Period) or on or after December 1, 2023 (in respect of Notes converted with a Conversion Date that occurs on or after December 1, 2023).
(iv) The cash, shares of Common Shares Stock or combination of cash and shares of Common Shares Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows follows:
(A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted:
(A) if Physical Settlement applies to such conversion, converted a number of shares of Common Shares Stock equal to the Conversion Rate in effect on the Conversion Date for such conversionDate;
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement applies to such conversionSettlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 25 40 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement applies to such conversionSettlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 25 40 consecutive Trading Days during the related Observation Period.
(v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Share, if anyStock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the sameDaily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 13.02(e14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the Applicable Procedures procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Shares Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 13 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered for conversion by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 14.0215.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 13.03(b14.03(b) and Section 13.07(a14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement appliesSettlement, or on the second Business Day immediately following the last Trading Day of the Observation Period, if in the case of any other Settlement Method appliesMethod. If any shares of Common Shares Stock are due to a converting Holder, the Company shall issue or cause to be issued, and deliver (or otherwise cause to be deliveredif applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of shares of Common Shares Stock to which such Holder shall be entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue issuance of any shares of Common Shares Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Shares Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 13.0414.04, no adjustment shall be made for dividends on any shares of Common Shares Stock issued upon the conversion of any Note as provided in this Article 1314.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below in this Section 13.02(h), and the Company will not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notesbelow. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common SharesStock, any accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of any interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided, however, provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (43) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists exist at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record as of the close of business on the Regular Record Date immediately preceding the Maturity Date, Date or a Fundamental Change Repurchase Date shall receive the full interest payment due on the Maturity Date or the Fundamental Change Repurchase Date in cash regardless of whether their Notes have been converted following such Regular Record Date, and the converting Holder shall not be required to make a corresponding payment.
(i) The Person in whose name the certificate for any shares of Common Shares shall be issuable Stock delivered upon conversion is registered shall be treated as a shareholder stockholder of record of such shares as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement applies to such conversionSettlement) or as of the close of business on the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement applies to such conversionSettlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional share of Common Share Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Share Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date, Date (in the case of Physical Settlement, ) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period, Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be issuable issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Sources: Indenture (Fortive Corp)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Except as provided in Section 13.02, Section 13.03(b14.03(b) and Section 13.07(a14.07(a), upon conversion of any Note, on the third Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall satisfy its Conversion Obligation by paying pay or deliveringdeliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (a “Cash Settlement”)Settlement Amount” equal to the sum of the Daily Settlement Amounts for each of the 45 consecutive Trading Days during the relevant Observation Period for such Note, Common Shares, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with Section 13.02(jsubsection (j) (“Physical Settlement”), or a combination of cash and Common Shares, together, if applicable, with cash in lieu of delivering any fractional Common Share in accordance with Section 13.02(j) (“Combination Settlement”), at its election, as set forth in this Section 13.02, subject to the requirements of Section 13.0714.02.
(i) All conversions for which the relevant Conversion Date occurs during a Redemption Period on or after October 15, 2018 shall be settled using the same Settlement Method, forms and all conversions for which the relevant Conversion Date occurs on or after December 1, 2023 shall be settled using the same Settlement Method.
(ii) amounts of consideration. Except for any conversions for which the relevant Conversion Date occurs during a Redemption Period and any conversions for which the relevant Conversion Date occurs on or after December 1October 15, 20232018, the Company shall use the same Settlement Method forms and amounts of consideration for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method forms and amounts with respect to conversions with different Conversion Dates.
(iii) . If, in respect of any Conversion Date (or any conversion for which such period, as the relevant Conversion Date occurs during a Redemption Period on or after December 1, 2023case may be), the Company elects to deliver settle all or a notice (the “Settlement Notice”) portion of its Conversion Obligation in excess of the relevant Settlement Method principal portion of the Notes being converted in cash in respect of such Conversion Date (or such period, as the case may be), the Company shall deliver such Settlement Notice to inform in writing the Trustee, the Conversion Agent (if other than the Trustee) and the converting Holders of such election (the “Settlement Notice”) no later than the close of business on the Trading Day immediately following the relevant related Conversion Date (or, in the case of any conversions of any Notes for which the relevant Conversion Date occurs (A) during a Redemption Period, in the applicable Redemption Notice or (B) on or after December 1October 15, 20232018, no later than October 15, 2018) and the close Company shall indicate in such Settlement Notice the percentage of business on each share issuable upon conversion in excess of the Business Day immediately preceding December 1, 2023principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”). If the Company does not elect a Settlement Method with respect to any conversion Cash Percentage prior to the deadline set forth in the immediately preceding sentence, then the Company shall be deemed no longer have the right to have elected elect a Cash Percentage and the Default Settlement Method Company shall settle its Conversion Obligation by paying cash in respect of such conversion. Such Settlement Noticethe principal portion of the converted Notes and delivering shares of Common Stock in respect of the remainder, if providedany, shall specify the relevant Settlement Method and, in the case of Combination Settlement, the applicable Specified Dollar Amount. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 in excess of the aggregate principal amount portion of the Notes to be being converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. For the avoidance of doubt, the Company’s failure to so select a Settlement Method or Specified Dollar Amount when so permitted shall not constitute a Default or Event of Default under this Indenture or the Notes. By notice to the Holders, the Company may change the Default Settlement Method to any permitted Settlement Method, except it may not change the Default Settlement Method during any Redemption Period (in respect of Notes converted with a Conversion Date occurring during such Redemption Period) or on or after December 1, 2023 (in respect of Notes converted with a Conversion Date that occurs on or after December 1, 2023)as set forth herein.
(ivii) The cash, Common Shares or combination of cash and Common Shares in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows in respect of each $1,000 principal amount of Notes being converted:
(A) if Physical Settlement applies to such conversion, a number of Common Shares equal to the Conversion Rate in effect on the Conversion Date for such conversion;
(B) if Cash Settlement applies to such conversion, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 25 consecutive Trading Days during the related Observation Period; and
(C) if Combination Settlement applies to such conversion, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of (if applicable), the 25 consecutive Trading Days during the related Observation Period.
(v) The Daily Net Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts, the Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Share, if anyStock, the Company shall notify in writing the Trustee and the Conversion Agent (if other than the Trustee) of the sameDaily Settlement Amounts, the Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 13.02(e14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the Applicable Procedures procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Shares Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 13 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered for conversion by a Holder thereof if such Holder ▇▇▇▇▇▇ has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 14.0215.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 13.03(b) and Section 13.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if Physical Settlement applies, or on the second Business Day immediately following the last Trading Day of the Observation Period, if any other Settlement Method applies. If any shares of Common Shares Stock are due to a converting HolderHolders, the Company shall issue and deliver (or otherwise cause to be delivered) issued, and deliver to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common Shares Stock to which such Holder shall be entitled, in book-entry format through the Depositary, entitled in satisfaction of the Company’s Conversion Obligation.
(d) In case any Physical Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order instruction of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Shares Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the Common Shares being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 13.0414.04, no adjustment shall be made for dividends on any shares of Common Shares Stock issued upon the conversion of any Note as provided in this Article 1314.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below in this Section 13.02(h), and the Company will not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notesbelow. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and Common SharesNotes, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided, however, provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following date that the corresponding Interest Payment Dateinterest is paid; or (43) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, Date shall receive the full interest payment due on the Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date.
(i) The Person in whose name the certificate for any shares of Common Shares shall be issuable Stock delivered upon conversion is registered shall be treated as a shareholder stockholder of record of such shares as of the close of business on the relevant Conversion Date (if Physical Settlement applies to such conversion) or as of the close of business on the last Trading Day of the relevant related Observation Period (if Combination Settlement applies to such conversion), as the case may bePeriod. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional share of Common Share Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Share Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date, in the case of Physical Settlement, or based on the Daily VWAP for the last Last Trading Day of the relevant Observation Period, in the case of Combination Settlement. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, Period the full number of shares that shall be issuable issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Sources: Indenture (Citrix Systems Inc)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 13.0214.02, Section 13.03(b14.03(b) and Section 13.07(a14.07(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying or delivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Physical Settlement”), ) or a combination of cash and shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Combination Settlement”), at its election, as set forth in this Section 13.02, subject to the requirements of Section 13.0714.02.
(i) All conversions of Called Notes for which the relevant Conversion Date occurs during a the related Redemption Period shall be settled using the same Settlement MethodPeriod, and all conversions for which the relevant Conversion Date occurs on or after December July 1, 2023 2029, shall be settled using the same Settlement Method.
(ii) Except for any conversions of Called Notes for which the relevant Conversion Date occurs during a the related Redemption Period Period, and any conversions for which the relevant Conversion Date occurs on or after December July 1, 20232029, and except to the extent the Company has irrevocably elected Physical Settlement pursuant to Section 14.01(b)(ii) in a notice as described in such Section or has previously made an irrevocable election with respect to all subsequent conversions of Notes pursuant to the second paragraph of Section 14.02(a)(iii), the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates.
(iii) If, in respect of any Conversion Date (or any conversion conversions of Called Notes for which the relevant Conversion Date occurs during a the related Redemption Period Period, or any conversions for which the relevant Conversion Date occurs on or after December July 1, 20232029 or for which the Company has irrevocably elected Physical Settlement pursuant to Section 14.01(b)(ii) in a notice as described in such Section), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company shall deliver such Settlement Notice to converting Holders Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of (A) any conversions of any Called Notes for which the relevant Conversion Date occurs (A) during a the related Redemption Period, in the applicable Redemption related Notice or of Redemption, (B) any conversions of Notes for which the relevant Conversion Date occurs on or after December July 1, 20232029, no later than the close of business on the Business Day immediately preceding December July 1, 20232029 or (C) any conversions for which the Company has irrevocably elected Physical Settlement pursuant to Section 14.01(b)(ii), in a notice as described in such Section, or for which the Company has previously made an irrevocable election with respect to all subsequent conversions of the Notes pursuant to the second paragraph of this Section 14.02(a)(iii)). If the Company does not elect a Settlement Method with respect to any conversion prior to the deadline set forth in the immediately preceding sentence, then the Company shall no longer have the right to elect a Settlement Method with respect to any conversion on such Conversion Date or during such period, and the Company shall be deemed to have elected the Default Settlement Method in with respect of to such conversion. Such Settlement Notice, if provided, Notice shall specify the relevant Settlement Method and, and in the case of an election of Combination Settlement, the applicable relevant Settlement Notice shall indicate the Specified Dollar AmountAmount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement (or is deemed to have elected Combination Settlement) in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. For the avoidance of doubt, the Company’s failure to so select timely elect a Settlement Method or specify as applicable a Specified Dollar Amount when so permitted shall not constitute a Default or Event of Default under this Indenture or the NotesIndenture. By notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company may may, from time to time, change the Default Settlement Method prior to July 1, 2029. By notice to all Holders, the Company may, prior to July 1, 2029, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through any Settlement Method that the Company is then permitted to elect, including Combination Settlement Method, except it may not change with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 or with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above a specific amount set forth in such election notice. If the Company changes the Default Settlement Method during any Redemption Period (or the Company irrevocably elects to fix the Settlement Method, in respect either case, to Combination Settlement with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes converted with at or above a specific amount, the Company will, after the date of such change or election, as the case may be, inform Holders converting their Notes, the Trustee and the Conversion Date occurring during Agent (if other than the Trustee) of such Redemption Period) Specified Dollar Amount no later than the relevant deadline for election of a specified Settlement Method as set forth in the immediately preceding paragraph, or, if the Company does not timely notify Holders, such Specified Dollar Amount will be the specific amount set forth in the election notice or, if no specific amount was set forth in the election notice, such Specified Dollar Amount will be $1,000 per $1,000 principal amount of Notes. A change in the Default Settlement Method or on or after December 1, 2023 (in respect an irrevocable election shall apply for all conversions of Notes converted with Conversion Dates occurring subsequent to delivery of such notice; provided, however, that no such change or election will affect any Settlement Method theretofore elected (or deemed to be elected) with respect to any Note. For the avoidance of doubt, such an irrevocable election, if made by the Company, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(m). However, the Company may nonetheless choose to execute such an amendment at its option. If the Company changes the Default Settlement Method or if the Company irrevocably fixes the Settlement Method pursuant to this paragraph, then, concurrently with providing notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee) of such change or election, the Company shall either post the Default Settlement Method or fixed Settlement Method, as the case may be, on its website or disclose the same in a Conversion Date current report on Form 8-K (or any successor form) that occurs on or after December 1, 2023)is filed with the Commission.
(iv) The cash, shares of Common Shares Stock or combination of cash and shares of Common Shares Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows follows:
(A) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted:
(A) if Physical Settlement applies to such conversion, converted a number of shares of Common Shares Stock equal to the Conversion Rate in effect on the Conversion Date for such conversionDate;
(B) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement applies to such conversionSettlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 25 20 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement applies to such conversionSettlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 25 20 consecutive Trading Days during the related Observation Period.
(v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or (if applicable), the Daily Conversion Values, as the case may be, Values (if applicable) and the amount of cash payable in lieu of delivering any fractional share of Common Share, if anyStock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the sameDaily Settlement Amounts (if applicable), the Daily Conversion Values (if applicable) and the amount of cash payable in lieu of delivering any fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 13.02(e14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the Applicable Procedures applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest any Special Interest payable on the next Special Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Shares Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest any Special Interest payable on the next Special Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 13 14 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Holder ▇▇▇▇▇▇ has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 14.0215.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 13.03(b14.03(b) and Section 13.07(a14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement applies(provided that, with respect to any Conversion Date following the Special Interest Record Date immediately preceding the Maturity Date where Physical Settlement applies to the related conversion, the Company shall settle any such conversion on the Maturity Date), or on the second Business Day immediately following the last Trading Day of the Observation Period, if in the case of any other Settlement Method appliesMethod. If any shares of Common Shares Stock are due to a converting Holder, the Company shall issue or cause to be issued, and deliver (or otherwise cause to be deliveredif applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of shares of Common Shares Stock to which such Holder shall be entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Shares Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Shares Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 13.0414.04, no adjustment shall be made for dividends on any shares of Common Shares Stock issued upon the conversion of any Note as provided in this Article 1314.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below in this Section 13.02(h), and the Company will not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notesbelow. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common SharesStock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Special Interest Record Date for the payment of Special Interest, and prior to the open of business on the corresponding Special Interest Payment Date, Holders of such Notes as of the close of business on such Regular Special Interest Record Date will receive the full amount of interest any Special Interest payable on such Notes on the corresponding Special Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided, however, that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, shall receive the full interest payment due on Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date.
(i) The Person in whose name any Common Shares shall be issuable upon conversion shall be treated as a shareholder of record of such shares as of the close of business on the relevant Conversion Date (if Physical Settlement applies to such conversion) or as of the close of business on the last Trading Day of the relevant Observation Period (if Combination Settlement applies to such conversion), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional Common Share upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Common Share issuable upon conversion based on the Daily VWAP for the relevant Conversion Date, in the case of Physical Settlement, or based on the Daily VWAP for the last Trading Day of the relevant Observation Period, in the case of Combination Settlement. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be issuable upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.Paym
Appears in 1 contract
Sources: Indenture (Snowflake Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 13.0214.02, Section 13.03(b14.03(b) and Section 13.07(a14.07(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying or delivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount Capitalized Principal Amount of Notes being converted, cash (“Cash Settlement”), shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Physical Settlement”), ) or a combination of cash and shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Combination Settlement”), at its election, as set forth in this Section 13.02, subject to the requirements of Section 13.0714.02.
(i) (x) All conversions of Called Notes for which the relevant Conversion Date occurs during a the related Redemption Period shall be settled using the same Settlement Method, and (y) all conversions for which the relevant Conversion Date occurs on or after December January 1, 2023 2027, shall be settled using the same Settlement Method.
(ii) Except for any such conversions for which the relevant Conversion Date occurs during a Redemption Period and any conversions for which the relevant Conversion Date occurs on or after December January 1, 20232027, and except to the extent the Company elects Physical Settlement to apply pursuant to Section 14.01(b)(ii) in a notice as described in such Section, the Company shall use the same Settlement Method for all conversions with occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with that occur on different Conversion Dates.
(iii) If, in respect of any Conversion Date (or any conversion for which one of the relevant Conversion Date occurs during a Redemption Period on or after December 1periods described below, 2023as the case may be), the Company elects to a Settlement Method, the Company shall deliver a written notice (the “Settlement Notice”) of the relevant Settlement Method so elected in respect of such Conversion Date (or such period, as the case may be), the Company shall deliver such Settlement Notice ) to converting Holders (with a copy to the Trustee and the Conversion Agent (if other than the Trustee)) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of (w) any conversions of any Called Notes for which the relevant Conversion Date occurs (A) during a the related Redemption Period, in the applicable related Redemption Notice or Notice, (Bx) any conversions of Notes for which the relevant Conversion Date occurs on or after December January 1, 20232027, no later than the close of business on the Business Day immediately preceding December January 1, 20232027, (y) any conversion for which the Company has irrevocably elected Physical Settlement to apply pursuant to Section 14.01(b)(ii) in a notice as described in such Section or (z) any conversion for which the Company has irrevocably elected Combination Settlement, with a certain Specified Dollar Amount or a Minimum Specified Amount per $1,000 Capitalized Principal Amount of Notes, to apply pursuant to the provisions of this Section 14.02(a)(iii), as described in this Section 14.02(a)(iii)). If the Company does not timely elect a Settlement Method with respect to any conversion prior to the deadline set forth in the immediately preceding sentence, then the Company shall no longer have the right to elect Cash Settlement or Physical Settlement for such conversion or during such period and the Company shall be deemed to have elected the Default Combination Settlement Method in respect of such conversionits Conversion Obligation, and the Specified Dollar Amount per $1,000 Capitalized Principal Amount of Notes shall be equal to $1,000. Such Settlement Notice, if provided, Notice shall specify the relevant Settlement Method and, and in the case of an election of Combination Settlement, the applicable relevant Settlement Notice shall indicate the Specified Dollar AmountAmount per $1,000 Capitalized Principal Amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a timely notify converting Holders of the Specified Dollar Amount per $1,000 principal amount Capitalized Principal Amount of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount Capitalized Principal Amount of Notes shall be deemed to be $1,000. By written notice to the Holders (with a copy to the Trustee and the Conversion Agent (if other than the Trustee)), the Company may, prior to January 1, 2027, at its option, elect to irrevocably fix the Settlement Method to any Settlement Method that the Company is then permitted to elect, including Combination Settlement with a Specified Dollar Amount per $1,000 Capitalized Principal Amount of Notes of $1,000 or with an ability to continue to set the Specified Dollar Amount per $1,000 Capitalized Principal Amount of Notes at or above a specific amount (the “Minimum Specified Amount”) set forth in such election notice. If the Company irrevocably elects Combination Settlement with an ability to continue to set the Specified Dollar Amount per $1,000 Capitalized Principal Amount of Notes at or above a specific amount, the Company shall send written notice to Holders converting their Notes, the Trustee and the Conversion Agent of such Specified Dollar Amount no later than the relevant deadline for election of a Settlement Method as described in this Section 14.02(a)(iii), or, if the Company does not timely notify Holders, such Specified Dollar Amount shall be the Minimum Specified Amount set forth in the election notice, unless no Minimum Specified Amount was set forth in the election notice, in which case such Specified Dollar Amount shall be $1,000 per $1,000 Capitalized Principal Amount of Notes. The irrevocable election shall apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such notice; provided that no such election will affect any Settlement Method theretofore elected (or deemed to be elected) with respect to any Note. For the avoidance of doubt, such an irrevocable election, if made, shall be effective without the Company’s failure need to so select a Settlement Method or Specified Dollar Amount when so permitted shall not constitute a Default or Event of Default under amend this Indenture or the Notes, including pursuant to Section 10.01(i). By notice to the HoldersHowever, the Company may change nonetheless choose to execute such an amendment at its option. If the Default Company irrevocably fixes the Settlement Method pursuant to any permitted Settlement Methodthe provisions in this Section 14.02(a)(iii), except it may not change the Default and such Settlement Method during any Redemption Period (in respect of Notes converted is not Combination Settlement with a Conversion Date occurring during Specified Dollar Amount of $1,000 per $1,000 Capitalized Principal Amount of Notes, then, concurrently with providing written notice to Holders of such Redemption Periodelection, the Company shall either post the fixed Settlement Method on its website or disclose the same in a current report on Form 8-K (or any successor form) or on or after December 1, 2023 (in respect of Notes converted that is filed with a Conversion Date that occurs on or after December 1, 2023)the Commission.
(iv) The cash, shares of Common Shares Stock or combination of cash and shares of Common Shares Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows (for the avoidance of doubt, with pro-ration for any portion of the Capitalized Principal Amount subject to conversion that is not an integral multiple of $1,000):
(A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount Capitalized Principal Amount of Notes being converted:
(A) if Physical Settlement applies to such conversion, converted a number of shares of Common Shares Stock equal to the Conversion Rate in effect on the Conversion Date for such conversionDate;
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement applies to such conversionSettlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount Capitalized Principal Amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 25 40 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement applies to such conversionSettlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount Capitalized Principal Amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 25 40 consecutive Trading Days during the related Observation Period.
(v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Share, if anyStock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the sameDaily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 13.02(e14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the Applicable Procedures procedures of the Depositary in effect at that time for converting a beneficial interest in a Global Note and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h) (and, if required, pay all transfer or similar taxes, if any, as set forth in Section 14.02(d) and Section 14.02(e)) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Shares Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to any accrued interest that has not been capitalized and is payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h). The Trustee (and and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 13 14 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 14.0215.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 13.03(b14.03(b) and Section 13.07(a14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement appliesSettlement, or on the second Business Day immediately following the last Trading Day of the relevant Observation Period, if in the case of any other Settlement Method appliesMethod; provided that, with respect to any Conversion Date occurring during a Redemption Period or after the Regular Record Date immediately preceding the Maturity Date, the Company will settle any such conversion for which Physical Settlement is applicable on the relevant Redemption Date or the Maturity Date, as applicable. If any shares of Common Shares Stock are due to a converting HolderHolders, the Company shall issue and deliver (or otherwise cause to be delivered) to the Conversion Agent or issued, and deliver to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common Shares Stock to which such Holder shall be entitled, in book-entry format through the Depositary, entitled in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall shall, upon receipt of a Company Order, authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax or other similar governmental charge due on the issue any issuance of any shares of Common Shares Stock upon conversion, unless the tax is due because the Holder requests any such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent or the Company’s stock transfer agent, as applicable, may refuse to deliver the certificates representing the shares of Common Shares Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 13.0414.04, no adjustment shall be made for dividends on any shares of Common Shares Stock issued upon the conversion of any Note as provided in this Article 1314.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for any accrued and unpaid interest, if anyinterest that has not been paid or capitalized, except as set forth below in this Section 13.02(h), and the Company will not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notesbelow. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount Capitalized Principal Amount of the Note and any accrued and unpaid interest, if anyinterest that has not been paid or capitalized, to, but not including, the relevant Conversion Date. As a result, any accrued and unpaid interest, if any, interest that has not been paid or capitalized to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common SharesStock, accrued and unpaid interest that has not been paid or capitalized will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and on or prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on in cash at the corresponding Cash Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided, however, that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) Rate as if the Company has specified a Redemption Date that is after a Regular Record Date and on had elected the Cash Method for all such interest (whether or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if not the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date actually elected the Cash Method) and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or principal of such converted Notes shall not be increased by any Capitalization Amount (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, shall receive the full interest payment due on Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date.
(i) The Person in whose name any Common Shares shall be issuable upon conversion shall be treated as a shareholder of record of such shares as of the close of business on the relevant Conversion Date (if Physical Settlement applies to such conversion) or as of the close of business on the last Trading Day of the relevant Observation Period (if Combination Settlement applies to such conversion), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional Common Share upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Common Share issuable upon conversion based on the Daily VWAP for the relevant Conversion Date, in the case of Physical Settlement, or based on the Daily VWAP for the last Trading Day of the relevant Observation Period, in the case of Combination Settlement. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be issuable upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 13.029.02, Section 13.03(b9.03(b) and Section 13.07(a9.09(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying pay or deliveringdeliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), Common Class A Ordinary Shares, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional Common Share Class A Ordinary Shares in accordance with subsection (j) of this Section 13.02(j) 9.02 (“Physical Settlement”), ) or a combination of cash and Common Class A Ordinary Shares, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional Common Share Class A Ordinary Shares in accordance with subsection (j) of this Section 13.02(j) 9.02 (“Combination Settlement”), at its election, as set forth in this Section 13.02, subject to the requirements of Section 13.079.02.
(i) All conversions of Notes called (or deemed called) for Redemption for which the relevant Conversion Date occurs during a the related Redemption Period shall be settled using the same Settlement MethodPeriod, and all conversions for which the relevant Conversion Date occurs on or after December 1May 15, 2023 2029, shall be settled using the same Settlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs during a Redemption Period Period, and any conversions for which the relevant Conversion Date occurs on or after December 1May 15, 20232029, and except to the extent the Company has irrevocably elected Physical Settlement pursuant to Section 9.01(b) in a notice as described in such Section or has previously made an irrevocable election with respect to all subsequent conversions of Notes pursuant to Section 9.02(a)(iii), the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates.
(iii) If, in respect of any Conversion Date (or any conversion conversions of Notes called (or deemed called) for which the relevant Conversion Date occurs during a the related Redemption Period Period, or any conversions for which the relevant Conversion Date occurs on or after December 1May 15, 20232029 or for which the Company has irrevocably elected Physical Settlement pursuant to Section 9.01(b) in a notice as described in such Section), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or either such period, as the case may be), the Company Company, shall deliver such Settlement Notice to converting Holders Holders, the Trustee and the Conversion Agent (if other than the Trustee) in accordance with Section 13.12, no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of (x) any conversion of Notes called (or deemed called) for Redemption for which the relevant Conversion Date occurs during the Redemption Period, in the relevant Redemption Notice, (y) any conversions of any Notes for which the relevant Conversion Date occurs (A) during a Redemption Period, in the applicable Redemption Notice or (B) on or after December 1May 15, 20232029, no later than May 15, 2029, or (z) any conversions for which the close of business on the Business Day immediately preceding December 1Company has irrevocably elected Physical Settlement pursuant to Section 9.01(b), 2023in a notice as described in such Section). If the Company does not timely elect a Settlement Method with respect to any conversion prior to the deadline set forth in the immediately preceding sentence, then the Company shall no longer have the right to elect a Settlement Method with respect to any such Conversion Date or during such period and the Company shall be deemed to have elected the Default Settlement Method in respect of such conversionits Conversion Obligation. Such Settlement Notice, if provided, Notice shall specify the relevant Settlement Method and, and in the case of an election of Combination Settlement, the applicable relevant Settlement Notice shall indicate the Specified Dollar AmountAmount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation Obligation, or the Company is deemed to have elected Combination Settlement, but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. For the avoidance of doubt, the Company’s failure to so select timely elect a Settlement Method or specify as applicable a Specified Dollar Amount when so permitted shall will not constitute a Default or Event of Default default under this Indenture or the NotesIndenture. By notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company may may, from time to time, change the Default Settlement Method prior to May 15, 2029. In addition, by notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to May 15, 2029, at its option, irrevocably elect to fix the Settlement Method to any Settlement Method that the Company is then permitted to elect, including Combination Settlement Method, except it may not change with a specified dollar amount per $1,000 principal amount of Notes of $1,000 or with an ability to continue to set the specified dollar amount per $1,000 principal amount of Notes at or above a specific amount set forth in such notice. If the Company changes the Default Settlement Method during any Redemption Period (or irrevocably elects to fix the Settlement Method, in respect either case, to Combination Settlement with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes converted at or above a specific amount, the Company will, after the date of such change or election, as the case may be, inform Holders converting their Notes, the Trustee and the Conversion Agent (if other than the Trustee) of such Specified Dollar Amount no later than the relevant deadline for election of a Settlement Method as described in the immediately preceding paragraph, or, if the Company does not timely notify Holders, such Specified Dollar Amount will be the specific amount set forth in the Settlement Notice or, if no specific amount was set forth in the Settlement Notice, such Specified Dollar Amount will be $1,000 per $1,000 principal amount of Notes. A change in the Default Settlement Method or an irrevocable election will apply to all note conversions on conversion dates occurring subsequent to delivery of such Settlement Notice; provided, however, that no such change or election will affect any Settlement Method theretofore elected (or deemed to be elected) with respect to any Note. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Supplemental Indenture or the Notes, including pursuant to the provisions described in Section 8.02(a). However, the Company may nonetheless choose to execute such an amendment at its option. If the Company changes the Default Settlement Method or irrevocably fixes the Settlement Method pursuant to the provisions described in the preceding paragraph, then, concurrently with providing a Settlement Notice to Holders of Notes, the Trustee and the Conversion Date occurring during Agent (if other than the Trustee) of such Redemption Periodchange or election, the Company will post notice of the Default Settlement Method on its website or otherwise disclose such information in a Current Report on Form 6-K or 8-K (or any successor form) or on or after December 1, 2023 (in respect of Notes converted that is filed with a Conversion Date that occurs on or after December 1, 2023)the Commission.
(iv) The cash, Common Class A Ordinary Shares or combination of cash and Common Class A Ordinary Shares payable or deliverable by the Company in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows follows:
(A) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted:
(A) if Physical Settlement applies to such conversion, converted a number of Common Class A Ordinary Shares equal to the Conversion Rate in effect immediately after the close of business on the Conversion Date for such conversionDate;
(B) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement applies to such conversionSettlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 25 forty (40) consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement applies to such conversionSettlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 25 forty (40) consecutive Trading Days during the related Observation Period.
(vb) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional Common Share, if anyClass A Ordinary Shares, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the sameDaily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional Class A Ordinary Shares. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility or liability for any such determination.
(bc) Subject to Section 13.02(e9.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such a Holder shall (i) in the case of a Global Note, comply with the Applicable Procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled entitled, and if required, pay all transfer or similar taxes, if any, as set forth in Section 13.02(h9.02(h) and (ii) in the case of a Physical Note Note, the Holder thereof shall (1) complete, manually sign and deliver an irrevocable notice (or a facsimile, PDF or other electronic transmission thereof) to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any Common Class A Ordinary Shares to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h9.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 13 9 on the Conversion Date for such conversion. No Holder may surrender Notes may be surrendered for conversion by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 14.0210.02. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation Settlement Amount with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) . A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 13.03(b9.03(b) and Section 13.07(a9.09(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation Obligation, including any applicable Interest Make-Whole Conversion Rate Adjustment, on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement appliesSettlement, or on the second Business Day immediately following the last Trading Day of the relevant Observation Period, if in the case of any other Settlement Method appliesMethod; provided, that with respect to any Conversion Date occurring during a Redemption Period, the Company will settle any such conversion for which Physical Settlement is applicable on the relevant Redemption Date; provided, further, that notwithstanding the foregoing, with respect to any Conversion Date occurring after the regular Record Date immediately preceding the Maturity Date, the Company will settle any such conversion for which Physical Settlement is applicable on the Maturity Date. If any Common Class A Ordinary Shares are due to a converting Holder, the Company shall issue or cause to be issued, and deliver (or otherwise cause to be deliveredif applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of Common Class A Ordinary Shares to which such Holder shall be entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall deliver a Company Order, and the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp stamp, issue, transfer or similar issue or transfer tax or similar governmental charge due on the delivery of Class A Ordinary Shares required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp issue, transfer or similar issue or transfer tax due on the issue delivery of any Common Class A Ordinary Shares upon conversion, unless the tax is due because the Holder requests such shares Class A Ordinary Shares to be issued in a name other than the such Holder’s name, in which case the such Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the Common Class A Ordinary Shares being issued in a name other than the Holdersuch ▇▇▇▇▇▇’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 13.049.06, no adjustment shall be made for dividends on any Common Class A Ordinary Shares issued upon the conversion of any Note as provided in this Article 139.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Note Custodian (if other than the Trustee) at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below in this Section 13.02(h), and the Company will not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notesbelow. The Company’s settlement payment and delivery, as the case may be, of the full Conversion Obligation Settlement Amount with respect to any converted Note shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and Common Class A Ordinary Shares, accrued and unpaid interest will shall be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided, however, that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, shall receive the full interest payment due on Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date.
(i) The Person in whose name any Common Shares shall be issuable upon conversion shall be treated as a shareholder of record of such shares as of the close of business on the relevant Conversion Date (if Physical Settlement applies to such conversion) or as of the close of business on the last Trading Day of the relevant Observation Period (if Combination Settlement applies to such conversion), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional Common Share upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Common Share issuable upon conversion based on the Daily VWAP for the relevant Conversion Date, in the case of Physical Settlement, or based on the Daily VWAP for the last Trading Day of the relevant Observation Period, in the case of Combination Settlement. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be issuable upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.but
Appears in 1 contract
Sources: First Supplemental Indenture (Bitdeer Technologies Group)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 13.0214.02, Section 13.03(b14.03(b) and Section 13.07(a14.07(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying or delivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, (x) cash up to the aggregate principal amount of the Notes being converted and (“Cash Settlement”), y) cash or shares of Common Shares, together, if applicable, with cash in lieu of delivering any fractional Common Share in accordance with Section 13.02(j) (“Physical Settlement”), Stock or a combination of cash and shares of Common SharesStock, togetherat the Company’s election, in respect of the remainder, if applicableany, with cash of its Conversion Obligation in lieu excess of delivering any fractional Common Share in accordance with Section 13.02(j) (“Combination Settlement”), at its electionthe aggregate principal amount of the Notes being converted, as set forth in this Section 13.02, subject to the requirements of Section 13.0714.02(a)(iii) and 14.02(j).
(i) All conversions for which the relevant Conversion Date occurs during a Redemption Period shall be settled using the same Settlement Methodon or after May 15, 2029, and all conversions for which the relevant Conversion Date occurs on or after December 1during a Redemption Period, 2023 shall be settled using the same Settlement Methodforms and amounts of consideration.
(ii) Except for any conversions for which the relevant Conversion Date occurs during a Redemption Period Period, and any conversions for which the relevant Conversion Date occurs on or after December 1May 15, 20232029, the Company shall use the same Settlement Method forms and amounts of consideration for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method forms and amounts of consideration with respect to conversions with different Conversion Dates. In addition, if the Company calls any Notes for redemption pursuant to Article 16, and the related Redemption Date is on or after May 15, 2029, then the forms and amounts of consideration during the Redemption Period must be the same forms and amounts of consideration that apply to all conversions with a Conversion Date that occurs on or after May 15, 2029.
(iii) If, in respect of any Conversion Date (or any conversion conversions for which the relevant Conversion Date occurs during a Redemption Period Period, or for which the relevant Conversion Date occurs on or after December 1May 15, 20232029), the Company elects to deliver settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cash, the Company shall provide a notice (the “Settlement Notice”) to Holders of the relevant Settlement Method such election in respect of such Conversion Date (or such period, as the case may be), and the Company shall deliver such Settlement Notice to converting Holders in writing (or if the Notes are then in global form through the applicable procedures of the Depositary), the Trustee and the Conversion Agent (if other than the Trustee), no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions of any Notes for which the relevant Conversion Date occurs (Ax) during a Redemption Period, in the applicable Notice of Redemption Notice or (By) on or after December 1May 15, 20232029, no later than the close of business on the Business Day immediately preceding December 1May 15, 20232029) (the “Settlement Method Election Date”). Such Settlement Notice shall indicate the percentage of each share of Common Stock issuable upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”). If the Company does not elect a Settlement Method with respect to any conversion make such an election prior to the deadline set forth in the immediately preceding sentenceSettlement Method Election Date, then the Company shall be deemed no longer have the right to have elected elect a Cash Percentage and the Default Settlement Method Company shall settle its Conversion Obligation paying cash in respect of such conversion. Such Settlement Notice, if provided, shall specify the relevant Settlement Method and, in principal portion of the case Notes being converted and delivering shares of Combination Settlement, the applicable Specified Dollar Amount. If the Company delivers a Settlement Notice electing Combination Settlement Common Stock in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount the remainder, if any, of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. For the avoidance of doubt, the Company’s failure to so select a Settlement Method or Specified Dollar Amount when so permitted shall not constitute a Default or Event Conversion Obligation in excess of Default under this Indenture or the Notes. By notice to aggregate principal portion of the Holders, the Company may change the Default Settlement Method to any permitted Settlement Method, except it may not change the Default Settlement Method during any Redemption Period (in respect of Notes converted with a Conversion Date occurring during such Redemption Period) or on or after December 1, 2023 (in respect of Notes converted with a Conversion Date that occurs on or after December 1, 2023)being converted.
(iv) The cash, shares of Common Shares Stock or combination of cash and shares of Common Shares Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows in respect of each $1,000 principal amount of Notes being converted:
(A) if Physical Settlement applies to such conversion, a number of Common Shares equal to the Conversion Rate in effect on the Conversion Date for such conversion;
(B) if Cash Settlement applies to such conversion, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 25 consecutive Trading Days during the related Observation Period; and
(C) if Combination Settlement applies to such conversion, follows: the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 25 50 consecutive Trading Days during the related Observation Period.
(v) The Daily Settlement Amounts, the Daily Net Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or Amounts, the Daily Net Settlement Amounts, the Daily Conversion Values, as the case may be, Values and the amount of cash payable in lieu of delivering any fractional share of Common Share, if anyStock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the sameDaily Settlement Amounts, the Daily Net Settlement Amounts, the Daily Conversion Values and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 13.02(e14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the Applicable Procedures applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Shares Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documentsdocuments in a form reasonably satisfactory to the Conversion Agent), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents in a form reasonably satisfactory to the Conversion Agent and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 13 14 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Holder H▇▇▇▇▇ has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 14.0215.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 13.03(b14.03(b) and Section 13.07(a14.07(a), the Company shall pay or and, if applicable, deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if Physical Settlement applies, or on the second Business Day immediately following the last Trading Day of the Observation PeriodPeriod unless such Conversion Date occurs following the regular Record Date immediately preceding the Maturity Date, in which case the Company shall make such payment (and delivery, if any other Settlement Method appliesapplicable) on the Maturity Date. If any shares of Common Shares Stock are due to a converting Holder, the Company shall issue or cause to be issued, and deliver (or otherwise cause to be deliveredif applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of shares of Common Shares Stock to which such Holder shall be entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Shares Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Shares Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 13.0414.04, no adjustment shall be made for dividends on any shares of Common Shares Stock issued upon the conversion of any Note as provided in this Article 1314.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below in this Section 13.02(h14.02(h), and the Company will not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and Common Shares, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes (to, but not including the corresponding Interest Payment Date) on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so convertedconverted on the corresponding Interest Payment Date (regardless of whether the converting Holder was the Holder of record on such Regular Record Date); provided, however, provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Scheduled Trading Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists exist at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record at the close of business on the Regular Record Date immediately preceding the Maturity Date, Date shall receive the full interest payment due on the Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date.
(i) The Person in whose name any the shares of Common Shares Stock shall be issuable upon conversion shall be treated as a shareholder stockholder of record of such shares as of the close of business on the relevant Conversion Date (if Physical Settlement applies to such conversion) or as of the close of business on the last Trading Day of the relevant Observation Period (if Combination Settlement applies to such conversion), as the case may bePeriod. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional share of Common Share Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Share Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date, in the case of Physical Settlement, or based on the Daily VWAP for the last Trading Day of the relevant Observation Period, in the case of Combination Settlement. For each Note surrendered for conversion, if the Company has elected (a Cash Percentage less than 100% or is deemed if the Company does not deliver a Settlement Notice prior to have elected) Combination Settlementthe Settlement Method Election Date, the full number of shares that shall be issuable issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Sources: Indenture (WisdomTree, Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 13.0214.02, Section 13.03(b14.03(b) and Section 13.07(a14.07(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying pay or deliveringdeliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Physical Settlement”), ) or a combination of cash and shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Combination Settlement”), at its election, as set forth in this Section 13.02, subject to the requirements of Section 13.0714.02.
(i) All conversions for which the relevant Conversion Date occurs on or after May 15, 2028, all conversions of Called Notes for which the relevant Conversion Date occurs during a the related Redemption Period shall be settled using the same Settlement MethodPeriod, and all conversions for which the relevant Conversion Date occurs on or during the period after December 1, 2023 delivery to the Holders of a Certain Distribution Notification until the related Certain Distribution Conversion Period End Date shall be settled using the same Settlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs on or after May 15, 2028, any conversions of Called Notes for which the relevant Conversion Date occurs during a the related Redemption Period and any conversions for which the relevant Conversion Date occurs on or during the period after December 1, 2023delivery to the Holders of a Certain Distribution Notification until the related Certain Distribution Conversion Period End Date, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates.
(iii) If, in respect of any Conversion Date (or any conversion for which one of the relevant Conversion Date occurs during a Redemption Period on or after December 1periods described in the third immediately succeeding set of parentheses, 2023as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company Company, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of (i) any conversions of any Called Notes for which the relevant Conversion Date occurs (A) during a the related Redemption Period, in the applicable relevant Redemption Notice or Notice, (Bii) any conversions of Notes for which the relevant Conversion Date occurs on or after December 1May 15, 20232028, no later than May 15, 2028, or (iii) any conversions of Notes for which the close relevant Conversion Date occurs during the period after delivery to the Holders of business on a Certain Distribution Notification until the Business Day immediately preceding December 1related Certain Distribution Conversion Period End Date pursuant to Section 14.01(b)(ii), 2023in such Certain Distribution Notification) (in each case, the “Settlement Method Election Deadline”). If the Company does not elect a Settlement Method prior to the Settlement Method Election Deadline, the Company shall no longer have the right to elect a Settlement Method with respect to any conversion prior to the deadline set forth in the immediately preceding sentenceon such Conversion Date or during such period, then and the Company shall be deemed to have elected the Default Settlement Method in with respect of to such conversion. Such Settlement Notice, if provided, Notice shall specify the relevant Settlement Method and, and in the case of an election of Combination Settlement, the applicable relevant Settlement Notice shall indicate the Specified Dollar AmountAmount per $1,000 principal amount of Notes. If the Company timely delivers a Settlement Notice electing Combination Settlement (or is deemed to have elected Combination Settlement) in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes to be converted in such Settlement Notice, the Specified Dollar Amount shall be deemed to be $1,000 per $1,000 principal amount of Notes shall be deemed to be $1,000Notes. For the avoidance of doubt, the Company’s failure to so select timely elect a Settlement Method or specify the Specified Dollar Amount when so permitted shall not constitute a Default or Event of Default under this Indenture or the NotesIndenture. By notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company may may, from time to time, change the Default Settlement Method prior to May 15, 2028. In addition, by notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to May 15, 2028, at its option, elect to irrevocably fix the Settlement Method to any Settlement Method that the Company is then permitted to elect, including Combination Settlement Method, except it may not change with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 or with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above a specific amount set forth in such election notice. If the Company changes the Default Settlement Method during any Redemption Period (or the Company irrevocably elects to fix the Settlement Method, in respect either case, to Combination Settlement with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes converted at or above a specific amount, the Company shall, after the date of such change or election, as the case may be, inform Holders converting their Notes, the Trustee and the Conversion Agent (if other than the Trustee) of such Specified Dollar Amount no later than the relevant Settlement Method Election Deadline, or, if the Company does not timely notify Holders, such Specified Dollar Amount will be the specific amount set forth in the election notice or, if no specific amount was set forth in the election notice, such Specified Dollar Amount will be $1,000 per $1,000 principal amount of Notes. A change in the Default Settlement Method or an irrevocable election to fix the Settlement Method shall apply to all Note conversions on Conversion Dates occurring subsequent to the delivery of such notice; provided, however, that no such change or election shall affect any Settlement Method theretofore elected (or deemed to be elected) with respect to any Note pursuant to this Section 14.02(a). Concurrently with providing notice to all the Holders, the Trustee and the Conversion Agent (if other than the Trustee) of a Conversion Date occurring during change in the Default Settlement Method or an election to irrevocably fix the Settlement Method, the Company shall either post the Default Settlement Method or fixed Settlement Method, as the case may be, on the Company’s website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission. For the avoidance of doubt, such Redemption Periodan irrevocable election, if made, shall be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(k) or on or after December 1of this Indenture. However, 2023 (in respect of Notes converted with a Conversion Date that occurs on or after December 1, 2023)the Company may nonetheless choose to execute such an amendment at the Company’s option.
(iv) The cash, shares of Common Shares Stock or combination of cash and shares of Common Shares Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows follows:
(A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted:
(A) if Physical Settlement applies to such conversion, converted a number of shares of Common Shares Stock equal to the Conversion Rate in effect on the Conversion Date for such conversionDate;
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement applies to such conversionSettlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 25 40 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement applies to such conversionSettlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 25 40 consecutive Trading Days during the related Observation Period.
(v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Share, if anyStock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the same. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 13.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the Applicable Procedures and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any Common Shares to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 13 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 14.02. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 13.03(b) and Section 13.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if Physical Settlement applies, or on the second Business Day immediately following the last Trading Day of the Observation Period, if any other Settlement Method applies. If any Common Shares are due to a converting Holder, the Company shall issue and deliver (or otherwise cause to be delivered) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of Common Shares to which such Holder shall be entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any Common Shares upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the Common Shares being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 13.04, no adjustment shall be made for dividends on any Common Shares issued upon the conversion of any Note as provided in this Article 13.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below in this Section 13.02(h), and the Company will not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and Common Shares, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided, however, that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, shall receive the full interest payment due on Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date.
(i) The Person in whose name any Common Shares shall be issuable upon conversion shall be treated as a shareholder of record of such shares as of the close of business on the relevant Conversion Date (if Physical Settlement applies to such conversion) or as of the close of business on the last Trading Day of the relevant Observation Period (if Combination Settlement applies to such conversion), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional Common Share upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Common Share issuable upon conversion based on the Daily VWAP for the relevant Conversion Date, in the case of Physical Settlement, or based on the Daily VWAP for the last Trading Day of the relevant Observation Period, in the case of Combination Settlement. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be issuable upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.Daily
Appears in 1 contract
Sources: Indenture (Workiva Inc)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 13.02Section 14.02, Section 13.03(bSection 14.03(b) and Section 13.07(aSection 14.07(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying or delivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with Section 13.02(jsubsection (j) of this Section 14.02 (“Physical Settlement”), ) or a combination of cash and shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with Section 13.02(jsubsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 13.02, subject to the requirements of Section 13.07Section 14.02.
(i) All conversions of Called Notes for which the relevant Conversion Date occurs during a the related Redemption Period shall be settled using the same Settlement MethodPeriod, and all conversions for which the relevant Conversion Date occurs on or after December 1May 15, 2023 2025, shall be settled using the same Settlement Method.
(ii) Except for any conversions of Called Notes for which the relevant Conversion Date occurs during a the related Redemption Period Period, and any conversions for which the relevant Conversion Date occurs on or after December 1May 15, 20232025, and except to the extent the Company has irrevocably elected Physical Settlement pursuant to Section 14.01(b)(ii) in a notice as described in such Section, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates.
(iii) If, in respect of any Conversion Date (or any conversion conversions of Called Notes for which the relevant Conversion Date occurs during a the related Redemption Period Period, or for which the relevant Conversion Date occurs on or after December 1May 15, 20232025 or for which the Company has irrevocably elected Physical Settlement pursuant to Section 14.01(b)(ii) in a notice as described in such Section), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company Company, through and upon a written request to the Trustee, shall deliver such Settlement Notice to converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of (A) any conversions of any Called Notes for which the relevant Conversion Date occurs (A) during a the related Redemption Period, in the applicable Redemption related Notice or of Redemption, (B) any conversions of Notes for which the relevant Conversion Date occurs on or after December 1May 15, 20232025, no later than May 15, 2025 or (C) any conversions for which the close of business on the Business Day immediately preceding December 1Company has irrevocably elected Physical Settlement pursuant to Section 14.01(b)(ii), 2023in a notice as described in such Section). If the Company does not elect a Settlement Method with respect to any conversion prior to the deadline set forth in the immediately preceding sentence, then the Company shall no longer have the right to elect a Settlement Method with respect to any conversion on such Conversion Date or during such period, and the Company shall be deemed to have elected the Default Settlement Method in with respect of to such conversion. Such Settlement Notice, if provided, Notice shall specify the relevant Settlement Method and, and in the case of an election of Combination Settlement, the applicable relevant Settlement Notice shall indicate the Specified Dollar AmountAmount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement (or is deemed to have elected Combination Settlement) in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. For the avoidance of doubt, the Company’s failure to so select timely elect a Settlement Method or specify as applicable a Specified Dollar Amount when so permitted shall not constitute a Default under this Indenture. By notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, from time to time, change the Default Settlement Method prior to May 15, 2025. By notice to all Holders, the Company may, prior to May 15, 2025, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through any Settlement Method that the Company is then permitted to elect, including Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 or Event with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above a specific amount set forth in such election notice. If the Company changes the Default under Settlement Method or the Company irrevocably elects to fix the Settlement Method, in either case, to Combination Settlement with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above a specific amount, the Company will, after the date of such change or election, as the case may be, inform Holders converting their Notes through and upon a written request to the Trustee of such Specified Dollar Amount no later than the relevant deadline for election of a specified Settlement Method as set forth in the immediately preceding paragraph, or, if the Company does not timely notify Holders, such Specified Dollar Amount will be the specific amount set forth in the election notice unless, if no specific amount was set forth in the election notice, such Specified Dollar Amount will be $1,000 per $1,000 principal amount of Notes. A change in the Default Settlement Method or an irrevocable election shall apply for all conversions of Notes with Conversion Dates occurring subsequent to delivery of such notice; provided, however, that no such election will affect any Settlement Method theretofore elected (or deemed to be elected) with respect to any Note. For the avoidance of doubt, such an irrevocable election, if made by the Company, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(m). By notice to the HoldersHowever, the Company may change nonetheless choose to execute such an amendment at its option. If the Company changes the Default Settlement Method or if the Company irrevocably fixes the Settlement Method pursuant to any permitted Settlement Methodthis paragraph, except it may not then, concurrently with providing notice to Holders of such change or election, the Company shall either post the Default Settlement Method during or fixed Settlement Method, as the case may be, on its website or disclose the same in a current report on Form 8-K (or any Redemption Period (in respect of Notes converted successor form) that is filed with a Conversion Date occurring during such Redemption Period) or on or after December 1, 2023 (in respect of Notes converted with a Conversion Date that occurs on or after December 1, 2023)the Commission.
(iv) The cash, shares of Common Shares Stock or combination of cash and shares of Common Shares Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows follows:
(A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted:
(A) if Physical Settlement applies to such conversion, converted a number of shares of Common Shares Stock equal to the Conversion Rate in effect on the Conversion Date for such conversionDate;
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement applies to such conversionSettlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 25 60 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement applies to such conversionSettlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 25 60 consecutive Trading Days during the related Observation Period.
(v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Share, if anyStock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the sameDaily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 13.02(eSection 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the Applicable Procedures applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(hSection 14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Shares Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(hSection 14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 13 Article 14 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 14.02Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b(b) above. Except as set forth in Section 13.03(bSection 14.03(b) and Section 13.07(aSection 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement applies(provided that, with respect to any Conversion Date following the Regular Record Date immediately preceding the Maturity Date where Physical Settlement applies to the related conversion, the Company shall settle any such conversion on the Maturity Date), or on the second Business Day immediately following the last Trading Day of the Observation Period, if in the case of any other Settlement Method appliesMethod. If any shares of Common Shares Stock are due to a converting Holder, the Company shall issue or cause to be issued, and deliver (or otherwise cause to be deliveredif applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of shares of Common Shares Stock to which such Holder shall be entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Shares Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Shares Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 13.04Section 14.04, no adjustment shall be made for dividends on any shares of Common Shares Stock issued upon the conversion of any Note as provided in this Article 1314.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below in this Section 13.02(h), and the Company will not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notesbelow. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common SharesStock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided, however, provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, shall receive the full interest payment due on Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date.
(i) The Person in whose name any Common Shares shall be issuable upon conversion shall be treated as a shareholder of record of such shares as of the close of business on the relevant Conversion Date (if Physical Settlement applies to such conversion) or as of the close of business on the last Trading Day of the relevant Observation Period (if Combination Settlement applies to such conversion), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional Common Share upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Common Share issuable upon conversion based on the Daily VWAP for the relevant Conversion Date, in the case of Physical Settlement, or based on the Daily VWAP for the last Trading Day of the relevant Observation Period, in the case of Combination Settlement. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be issuable upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.Dat
Appears in 1 contract
Sources: Indenture (OMNICELL, Inc)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 13.02Section 14.02, Section 13.03(bSection 14.03(b) and Section 13.07(aSection 14.07(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying pay or deliveringdeliver, as the case may be, to the converting Holder, in respect of each $US$1,000 principal amount of Notes being converted, cash (“Cash Settlement”), Common SharesADSs, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional Common Share ADSs in accordance with Section 13.02(jsubsection (j) of this Section 14.02 (“Physical Settlement”), ) or a combination of cash and Common SharesADSs, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional Common Share ADS in accordance with Section 13.02(jsubsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 13.02, subject to the requirements of Section 13.07Section 14.02.
(i) All conversions of Called Notes for which the relevant Conversion Date occurs during a the related Redemption Period shall be settled using the same Settlement MethodPeriod, and all conversions for which the relevant Conversion Date occurs on or after December 1September 15, 2023 2029 shall be settled using the same Settlement Method.
(ii) Except for any conversions of Called Notes for which the relevant Conversion Date occurs during a the relevant Redemption Period Period, and any conversions for which the relevant Conversion Date occurs on or after December 1September 15, 20232029, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates.
(iii) If, in respect of any Conversion Date (or any conversion for which the relevant Conversion Date occurs during a Redemption Period on or after December 1period described in the third immediately succeeding set of parentheses, 2023as the case may be), the Company elects to a Settlement Method, the Company shall deliver a written notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be)) to converting Holders, the Company shall deliver such Settlement Notice to converting Holders Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions of any Called Notes for which the relevant Conversion Date occurs (A) during a the relevant Redemption Period, in such Redemption Notice, or in the applicable Redemption Notice or (B) case of any conversions of Notes for which the relevant Conversion Date occurs on or after December 1September 15, 20232029, no later than September 15, 2029) (in each case, the close of business on the Business Day immediately preceding December 1, 2023“Settlement Method Election Deadline”). If the Company does not elect a Settlement Method with respect to any conversion prior to the deadline set forth in Settlement Method Election Deadline, the immediately preceding sentence, then Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected the Default Combination Settlement Method in respect of its Conversion Obligation (such conversionsettlement method, the “Default Settlement Method”), and the Specified Dollar Amount per US$1,000 principal amount of Notes shall be equal to US$1,000. Such Settlement Notice, if provided, Notice shall specify the relevant Settlement Method and, and in the case of an election of Combination Settlement, the applicable relevant Settlement Notice shall indicate the Specified Dollar AmountAmount per US$1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per US$1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per US$1,000 principal amount of Notes shall be deemed to be US$1,000.
(iv) The Company may, by written notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee), on or before September 15, 2029, at it option, change the Default Settlement Method to any Settlement Method that the Company is then permitted to elect or irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through any Settlement Method that the Company is then permitted to elect (including Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 or with an ability to be converted in such Settlement Notice, continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above any specific amount set forth in such election notice), or eliminate its right to elect a Settlement Method, in each case, that will apply for all Conversion Dates occurring subsequent to delivery of such notice. If the Company changes the Default Settlement Method or elects to irrevocably fix the Settlement Method, in either case, to Combination Settlement with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above a specific amount, the Company shall, after the date of such change or election, as the case may be, inform Holders converting their Notes, the Trustee and the Conversion Agent (if other than the Trustee) in writing of such Specified Dollar Amount in respect of the relevant conversion or conversions no later than the relevant Settlement Method Election Deadline for such conversion or conversions, or, if the Company does not timely inform the Holders, the Trustee and the Conversion Agent of the Specified Dollar Amount, such Specified Dollar Amount shall be the specific amount set forth in the change or election notice or, if no specific amount was set forth in the change or election notice, such Specified Dollar Amount shall be deemed to be $1,0001,000 per $1,000 principal amount of Notes. If the Company changes the Default Settlement Method or irrevocably fixes the Settlement Method, the Company shall concurrently with providing notice to all Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) issue a report on Form 6-K (or any successor form) or press release announcing that the Company has elected to change the Default Settlement Method or irrevocably fix the Settlement Method. Notwithstanding the foregoing, no such change in the Default Settlement Method or irrevocable election will affect any Settlement Method theretofore elected (or deemed to be elected) with respect to any Conversion Date pursuant to this Section 14.02. For the avoidance of doubt, such irrevocable election or change (as the Company’s failure case may be), if made, will be effective without the need to so select a Settlement Method or Specified Dollar Amount when so permitted shall not constitute a Default or Event of Default under amend this Indenture or the Notes, including pursuant to Section 10.01(i). By notice to the HoldersHowever, the Company may change nonetheless choose to execute such an amendment at the Default Settlement Method to any permitted Settlement Method, except it may not change the Default Settlement Method during any Redemption Period (in respect of Notes converted with a Conversion Date occurring during such Redemption Period) or on or after December 1, 2023 (in respect of Notes converted with a Conversion Date that occurs on or after December 1, 2023)Company’s option.
(ivv) The cash, Common Shares ADSs or a combination of cash and Common Shares ADSs, as applicable, in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows follows:
A. if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $US$1,000 principal amount of Notes being converted:
(A) if Physical Settlement applies to such conversion, converted a number of Common Shares ADSs equal to the Conversion Rate in effect immediately after the close of business on the relevant Conversion Date for such conversionDate;
(B) B. if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement applies to such conversionSettlement, the Company shall pay to the converting Holder in respect of each $US$1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 25 40 consecutive Trading Days during the related Observation Period; and
C. if the Company elects (Cor is deemed to have elected) if to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement applies to such conversionSettlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $US$1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 25 40 consecutive Trading Days during the related Observation Period.
(vvi) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional Common Share, if anyADS, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) in writing of the sameDaily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional ADSs. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 13.02(eSection 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with (w) the Applicable Procedures DTC’s procedures for converting a beneficial interest in a Global Note, (x) the Restricted Issuance Agreement with respect to any ADSs delivered upon conversion of the Notes prior to the Resale Restriction Termination Date or the Deposit Agreement, as applicable, in effect at that time and, (y) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(hSection 14.02(h) and (ii) in the case of a Physical Note (1) complete, manually or electronically sign and deliver an a duly completed irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any Common Shares ADSs to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(hSection 14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 13 Article XIV on the Conversion Date Date, or promptly following receipt of instructions for such conversion. No Notice of Conversion with respect to any Notes may be delivered, and no Notes may be surrendered for conversion conversion, by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice or Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice or Repurchase Notice, as the case may be, in accordance with Section 14.02Section 15.03. By converting a beneficial interest in a Global Note into ADSs, the Holder is deemed to represent to the Company and the ADS Depositary that such Holder is not an “affiliate” (as defined in Rule 144) of the Company and has not been an “affiliate” of the Company during the three months immediately preceding the Conversion Date. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b(b) above. Except as set forth in Section 13.03(bSection 14.03(b) and Section 13.07(aSection 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement appliesSettlement, or on the second Business Day immediately following the last Trading Day of the relevant Observation Period, if in the case of any other Settlement Method appliesMethod; provided that in respect of all conversions for which the relevant Conversion Date occurs on or after March 1, 2030 (if the Company elects Physical Settlement), the Company will deliver the consideration due in respect of such conversions on the Maturity Date. If any Common Shares ADSs are due to a converting Holder, the Company shall issue or cause to be issued, and deliver (or otherwise cause to be deliveredif applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of Common Shares ADSs to which such Holder shall be entitled, (i) in book-entry format through the DepositaryDepositary if the Conversion Date occurs on or after the Resale Restriction Termination Date, or (ii) in book-entry format through the ADS Depositary in accordance with the Restricted Issuance Agreement if the Conversion Date occurs prior to the Resale Restriction Termination Date, in each case, in satisfaction of the Company’s Conversion Obligation.
(d) In case any certificated Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp stamp, issue, transfer or similar issue or transfer tax due on the issue delivery of any Common Shares ADSs upon conversionconversion of the Notes or the issuance of the underlying Class A Ordinary Shares, unless the tax is due because the Holder requests such shares ADSs (or the Class A Ordinary Shares) to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver Company shall pay the certificates representing ADS Depositary’s fees for the Common Shares being issued in a name other than issuance of the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentenceADSs.
(f) Except as provided in Section 13.04Section 14.04, no adjustment shall be made for dividends on any Common Shares ADSs issued upon the conversion of any Note as provided in this Article 1314.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, Trustee shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below in this Section 13.02(h)below, and the Company will shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted the Notes, if any. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and Common SharesADSs, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds an amount in U.S. dollars equal to the amount of interest payable on the Notes so converted; provided, however, that no such payment shall be required converted (1) for conversions following regardless of whether the Regular Record Date immediately preceding converting Holder was the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders Holder of record on the corresponding Regular Record Date immediately preceding the Maturity Date, shall receive the full interest payment due on Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date.
(i) The Person in whose name any Common Shares shall be issuable upon conversion shall be treated as a shareholder of record of such shares as of the close of business on the relevant Conversion Date (if Physical Settlement applies to such conversion) or as of the close of business on the last Trading Day of the relevant Observation Period (if Combination Settlement applies to such conversion), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional Common Share upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Common Share issuable upon conversion based on the Daily VWAP for the relevant Conversion Date, in the case of Physical Settlement, or based on the Daily VWAP for the last Trading Day of the relevant Observation Period, in the case of Combination Settlement. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be issuable upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.Record
Appears in 1 contract
Sources: Indenture (iQIYI, Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 13.0214.02, Section 13.03(b14.03(b) and Section 13.07(a14.07(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying or delivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, (x) cash up to the aggregate principal amount of the Notes being converted and (“Cash Settlement”), y) cash or shares of Common Shares, together, if applicable, with cash in lieu of delivering any fractional Common Share in accordance with Section 13.02(j) (“Physical Settlement”), Stock or a combination of cash and shares of Common SharesStock, togetherat the Company’s election, in respect of the remainder, if applicableany, with cash of its Conversion Obligation in lieu excess of delivering any fractional Common Share in accordance with Section 13.02(j) (“Combination Settlement”), at its electionthe aggregate principal amount of the Notes being converted, as set forth in this Section 13.02, subject to the requirements of Section 13.0714.02(a)(iii) and 14.02(j).
(i) All conversions for which the relevant Conversion Date occurs during a Redemption Period shall be settled using the same Settlement Methodon or after May 15, 2030, and all conversions for which the relevant Conversion Date occurs on or after December 1during a Redemption Period, 2023 shall be settled using the same Settlement Methodforms and amounts of consideration.
(ii) Except for any conversions for which the relevant Conversion Date occurs during a Redemption Period Period, and any conversions for which the relevant Conversion Date occurs on or after December 1May 15, 20232030, the Company shall use the same Settlement Method forms and amounts of consideration for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method forms and amounts of consideration with respect to conversions with different Conversion Dates. In addition, if the Company calls any Notes for redemption pursuant to Article 16, and the related Redemption Date is on or after May 15, 2030, then the forms and amounts of consideration during the Redemption Period must be the same forms and amounts of consideration that apply to all conversions with a Conversion Date that occurs on or after May 15, 2030.
(iii) If, in respect of any Conversion Date (or any conversion conversions for which the relevant Conversion Date occurs during a Redemption Period Period, or for which the relevant Conversion Date occurs on or after December 1May 15, 20232030), the Company elects to deliver settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cash, the Company shall provide a notice (the “Settlement Notice”) to Holders of the relevant Settlement Method such election in respect of such Conversion Date (or such period, as the case may be), and the Company shall deliver such Settlement Notice to converting Holders in writing (or if the Notes are then in global form through the applicable procedures of the Depositary), the Trustee and the Conversion Agent (if other than the Trustee), no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions of any Notes for which the relevant Conversion Date occurs (Ax) during a Redemption Period, in the applicable Notice of Redemption Notice or (By) on or after December 1May 15, 20232030, no later than the close of business on the Business Day immediately preceding December 1May 15, 20232030) (the “Settlement Method Election Date”). Such Settlement Notice shall indicate the percentage of each share of Common Stock issuable upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”). If the Company does not elect a Settlement Method with respect to any conversion make such an election prior to the deadline set forth in the immediately preceding sentenceSettlement Method Election Date, then the Company shall be deemed no longer have the right to have elected elect a Cash Percentage and the Default Settlement Method Company shall settle its Conversion Obligation paying cash in respect of such conversion. Such Settlement Notice, if provided, shall specify the relevant Settlement Method and, in principal portion of the case Notes being converted and delivering shares of Combination Settlement, the applicable Specified Dollar Amount. If the Company delivers a Settlement Notice electing Combination Settlement Common Stock in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount the remainder, if any, of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. For the avoidance of doubt, the Company’s failure to so select a Settlement Method or Specified Dollar Amount when so permitted shall not constitute a Default or Event Conversion Obligation in excess of Default under this Indenture or the Notes. By notice to aggregate principal portion of the Holders, the Company may change the Default Settlement Method to any permitted Settlement Method, except it may not change the Default Settlement Method during any Redemption Period (in respect of Notes converted with a Conversion Date occurring during such Redemption Period) or on or after December 1, 2023 (in respect of Notes converted with a Conversion Date that occurs on or after December 1, 2023)being converted.
(iv) The cash, shares of Common Shares Stock or combination of cash and shares of Common Shares Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows in respect of each $1,000 principal amount of Notes being converted:
(A) if Physical Settlement applies to such conversion, a number of Common Shares equal to the Conversion Rate in effect on the Conversion Date for such conversion;
(B) if Cash Settlement applies to such conversion, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 25 consecutive Trading Days during the related Observation Period; and
(C) if Combination Settlement applies to such conversion, follows: the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 25 40 consecutive Trading Days during the related Observation Period.
(v) The Daily Settlement Amounts, the Daily Net Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or Amounts, the Daily Net Settlement Amounts, the Daily Conversion Values, as the case may be, Values and the amount of cash payable in lieu of delivering any fractional share of Common Share, if anyStock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the sameDaily Settlement Amounts, the Daily Net Settlement Amounts, the Daily Conversion Values and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 13.02(e14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the Applicable Procedures applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Shares Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documentsdocuments in a form reasonably satisfactory to the Conversion Agent), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents in a form reasonably satisfactory to the Conversion Agent and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 13 14 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Holder H▇▇▇▇▇ has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 14.0215.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 13.03(b14.03(b) and Section 13.07(a14.07(a), the Company shall pay or and, if applicable, deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if Physical Settlement applies, or on the second Business Day immediately following the last Trading Day of the Observation PeriodPeriod unless such Conversion Date occurs following the regular Record Date immediately preceding the Maturity Date, in which case the Company shall make such payment (and delivery, if any other Settlement Method appliesapplicable) on the Maturity Date. If any shares of Common Shares Stock are due to a converting Holder, the Company shall issue or cause to be issued, and deliver (or otherwise cause to be deliveredif applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of shares of Common Shares Stock to which such Holder shall be entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Shares Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Shares Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 13.0414.04, no adjustment shall be made for dividends on any shares of Common Shares Stock issued upon the conversion of any Note as provided in this Article 1314.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below in this Section 13.02(h14.02(h), and the Company will not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and Common Shares, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes (to, but not including the corresponding Interest Payment Date) on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so convertedconverted on the corresponding Interest Payment Date (regardless of whether the converting Holder was the Holder of record on such Regular Record Date); provided, however, provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Scheduled Trading Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists exist at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record at the close of business on the Regular Record Date immediately preceding the Maturity Date, Date shall receive the full interest payment due on the Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date.
(i) The Person in whose name any the shares of Common Shares Stock shall be issuable upon conversion shall be treated as a shareholder stockholder of record of such shares as of the close of business on the relevant Conversion Date (if Physical Settlement applies to such conversion) or as of the close of business on the last Trading Day of the relevant Observation Period (if Combination Settlement applies to such conversion), as the case may bePeriod. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional share of Common Share Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Share Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date, in the case of Physical Settlement, or based on the Daily VWAP for the last Trading Day of the relevant Observation Period, in the case of Combination Settlement. For each Note surrendered for conversion, if the Company has elected (a Cash Percentage less than 100% or is deemed if the Company does not deliver a Settlement Notice prior to have elected) Combination Settlementthe Settlement Method Election Date, the full number of shares that shall be issuable issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Sources: Indenture (WisdomTree, Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 13.0214.02, Section 13.03(b14.03(b) and Section 13.07(a14.07(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying pay or deliveringdeliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Physical Settlement”), or a combination of cash and shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Combination Settlement”), at its election, as set forth in this Section 13.0214.02, and subject to the requirements of any limitations imposed by Section 13.0714.13.
(i) All conversions for which the relevant Conversion Date occurs during after the Company’s issuance of a Notice of Redemption Period shall be settled using with respect to the same Settlement Method, Notes and all conversions for which prior to the relevant Conversion related Redemption Date occurs on or after December 1, 2023 shall be settled using the same Settlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs during after the Company’s issuance of a Notice of Redemption Period and any conversions for which with respect to the relevant Conversion Date occurs on or after December 1, 2023Notes but prior to the related Redemption Date, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates.
(iii) If, in respect of any Conversion Date (or any conversion for which the relevant Conversion Date occurs during a Redemption Period on or after December 1period described in the third immediately succeeding set of parentheses, 2023as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), and the Company has not previously irrevocably elected a Settlement Method as described under Section 14.02(a)(vi), the Company shall deliver such Settlement Notice to converting Holders Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions of any Notes for which the relevant Conversion Date occurs (A) during after the date of issuance of a Notice of Redemption Periodwith respect to the Notes and prior to the related Redemption Date, in the applicable Redemption such Notice or (B) on or after December 1, 2023, no later than the close of business on the Business Day immediately preceding December 1, 2023Redemption). If the Company does not elect a Settlement Method with respect to any conversion prior to the deadline set forth in the immediately preceding sentence, then unless the Company has previously irrevocably elected a Settlement Method as described under Section 14.02(a)(vi), unless Physical Settlement would otherwise be prohibited by Section 14.13, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement for such conversion and the Company shall be deemed to have elected the Default Combination Settlement Method in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. If Physical Settlement would otherwise be prohibited by Section 14.13 with respect to the Company’s Conversion Obligations for the relevant Conversion Date, the Company shall be required to elect Cash Settlement for such conversion. Such Settlement Notice, if provided, Notice shall specify the relevant Settlement Method and, and in the case of an election of Combination Settlement, the applicable relevant Settlement Notice shall indicate the Specified Dollar AmountAmount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. For the avoidance of doubt, the Company’s failure to so select a Settlement Method or Specified Dollar Amount when so permitted shall not constitute a Default or Event of Default under this Indenture or the Notes. By notice to the Holders, the Company may change the Default Settlement Method to any permitted Settlement Method, except it may not change the Default Settlement Method during any Redemption Period (in respect of Notes converted with a Conversion Date occurring during such Redemption Period) or on or after December 1, 2023 (in respect of Notes converted with a Conversion Date that occurs on or after December 1, 2023).
(iv) The cash, shares of Common Shares Stock or combination of cash and shares of Common Shares Stock in respect of any conversion of Notes (the “Settlement Amount”) ), shall be computed as follows follows:
(A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted:
(A) if Physical Settlement applies to such conversion, converted a number of shares of Common Shares Stock equal to the Conversion Rate in effect on the Conversion Date for such conversionDate;
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement applies to such conversionSettlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 25 20 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement applies to such conversionSettlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 25 20 consecutive Trading Days during the related Observation Period.
(v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Share, if anyStock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the sameDaily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(vi) The Company may, unless the Company has previously elected (or is deemed to have elected) a Settlement Method, at any time prior to any Conversion Date for any Note, and without the consent of the Holders, irrevocably elect a Settlement Method to apply in respect of such Notes converted following the date of the Company’s election. The Company will inform Holders, the Trustee and the Conversion Agent (if other than the Trustee), of such election and, if Combination Settlement applies, the Specified Dollar Amount.
(b) Subject to Section 13.02(e14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the Applicable Procedures applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedure procedures of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Shares Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to any unpaid interest and is payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 13 on 14 promptly following the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Holder ▇▇▇▇▇▇ has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 14.0215.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 13.03(b14.03(b) and Section 13.07(a14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date (or, in respect of any Conversion Date occurring after June 15, 2029, on the Maturity Date), if the Company elects Physical Settlement appliesSettlement, or on the second Business Day immediately following the last Trading Day of the Observation Period, if in the case of any other Settlement Method appliesMethod. If any shares of Common Shares Stock are due to a converting Holder, the Company shall issue and deliver (or otherwise cause to be delivered) issued, and deliver to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of shares of Common Stock (including any Additional Shares issuable in connection with a Permitted Make-Whole Conversion) to which such Holder shall be entitled, in certificated form or book-entry format through the DepositaryDepositary (provided that shares of Common Stock required to bear the Affiliate Restrictive Stock Legend shall be issued in certificated form or in book-entry form on the books of the Company’s transfer agent), in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion (including any Additional Shares upon conversionissuable in connection with a Permitted Make-Whole Conversion), unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Shares Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 13.0414.04, no adjustment shall be made for dividends on any shares of Common Shares Stock issued upon the conversion of any Note as provided in this Article 1314.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below in this Section 13.02(h), and the Company will not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notesbelow. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and result any unpaid interest, if any, interest to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common SharesStock, any accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversionconversion (excluding cash payments for fractional shares). Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and on or prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided, however, provided that no such payment shall be required (1) for conversions following the close of business on the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Fundamental Change Repurchase Date or a Special Repurchase Date, as applicable, that is after a Regular Record Date and on or prior to the Business Day immediately following succeeding the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Redemption Date that is after a Regular Record Date occurring after the Interest Payment Date of January 1, 2025 and on or prior to the Business second Scheduled Trading Day immediately following succeeding the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amountsoverdue interest, if any Defaulted Amounts overdue interest exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, Date shall receive the full interest payment due on the Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date.
(i) The Person in whose name the shares of Common Stock (including any Common Additional Shares issuable in connection with a Permitted Make-Whole Conversion) shall be issuable upon conversion shall be treated as a shareholder stockholder of record of such shares as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligations by Physical Settlement applies to such conversionSettlement) or as of the close of business on the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement applies to such conversionSettlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional share of Common Share Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Share Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date, Date (in the case of Physical Settlement, ) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period, Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be issuable issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Sources: Indenture (Complete Solaria, Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 13.02Section 14.02, Section 13.03(bSection 14.03(b) and Section 13.07(aSection 14.07(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying pay or deliveringdeliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with Section 13.02(jsubsection (j) of this Section 14.02 (“Physical Settlement”), ) or a combination of cash and shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with Section 13.02(jsubsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 13.02, subject to the requirements of Section 13.07Section 14.02.
(i) All conversions of Called Notes for which the relevant Conversion Date occurs during a the related Redemption Period shall be settled using the same Settlement Method, and all conversions for which the relevant Conversion Date occurs on or after December 1September 15, 2023 2029 shall be settled using the same Settlement Method.
(ii) Except for any conversions of Called Notes for which the relevant Conversion Date occurs during a the related Redemption Period Period, and any conversions of Notes for which the relevant Conversion Date occurs on or after December 1September 15, 20232029, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates.
(iii) If, in respect of any Conversion Date (or any conversion for which one of the relevant Conversion Date occurs during a Redemption Period on or after December 1periods described in the third immediately succeeding set of parentheses, 2023as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company Company, shall deliver such Settlement Notice to converting Holders Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of (x) any conversions of any Called Notes for which the relevant Conversion Date occurs (A) during a the related Redemption Period, in the applicable related Redemption Notice or (By) any conversions on or after December 1September 15, 20232029, no later than the close of business on the Business Day immediately preceding December 1September 15, 20232029). If the Company does not elect a Settlement Method with respect to any conversion prior to the deadline set forth in the immediately preceding sentence, then the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected the Default Combination Settlement Method in respect of such conversionits Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice, if provided, Notice shall specify the relevant Settlement Method and, and in the case of an election of Combination Settlement, the applicable relevant Settlement Notice shall indicate the Specified Dollar AmountAmount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. For the avoidance of doubt, the Company’s failure to so select a Settlement Method or Specified Dollar Amount when so permitted shall not constitute a Default or Event of Default under this Indenture or the Notes. By notice to the Holders, the Company may change the Default Settlement Method to any permitted Settlement Method, except it may not change the Default Settlement Method during any Redemption Period (in respect of Notes converted with a Conversion Date occurring during such Redemption Period) or on or after December 1, 2023 (in respect of Notes converted with a Conversion Date that occurs on or after December 1, 2023).
(iv) The cash, shares of Common Shares Stock or combination of cash and shares of Common Shares Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows follows:
(A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted:
(A) if Physical Settlement applies to such conversion, converted a number of shares of Common Shares Stock equal to the Conversion Rate in effect on the applicable Conversion Date for such conversionDate;
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement applies to such conversionSettlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 25 40 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement applies to such conversionSettlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 25 40 consecutive Trading Days during the related Observation Period.
(v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Share, if anyStock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the sameDaily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(vi) By notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 15, 2029, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through any Settlement Method that the Company is then permitted to elect for all Conversion Dates occurring subsequent to delivery of such notice. Concurrently with providing notice to all Holders, the Trustee and the Conversion Agent (if other than the Trustee) of an election to irrevocably fix the Settlement Method, the Company shall promptly file with or furnish to the Commission a Current Report on Form 8-K disclosing, issue a press release announcing or post on the Company’s website an announcement, that the Company has elected to irrevocably fix the Settlement Method (and describing such Settlement Method). Notwithstanding the foregoing, no such irrevocable election shall affect any Settlement Method theretofore elected (or deemed to be elected) with respect to any Note pursuant to this Section 14.02. For the avoidance of doubt, such an irrevocable election, if made, shall be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(i). However, the Company may nonetheless choose to execute such an amendment at its option.
(b) Subject to Section 13.02(eSection 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the Applicable Procedures procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(hSection 14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF “pdf” or other electronic transmission thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Shares Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to the interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(hSection 14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 13 Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered for conversion by a Holder thereof if such Holder ▇▇▇▇▇▇ has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 14.02Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b(b) above. Except as set forth in Section 13.03(bSection 14.03(b) and Section 13.07(aSection 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement applies(provided that, with respect to any Conversion Date that is on or after the Regular Record Date immediately preceding the Maturity Date where Physical Settlement applies to the related conversion, the Company shall pay or deliver, as applicable, the consideration due upon such conversion on the Maturity Date (or, if the Maturity Date is not a Business Day, the next Business Day)), or on the second Business Day immediately following the last Trading Day of the Observation Period, if in the case of any other Settlement Method appliesMethod. If any shares of Common Shares Stock are due to a converting Holder, the Company shall issue or cause to be issued, and deliver (or otherwise cause to be deliveredif applicable) to the Conversion Agent or to such converting Holder, or such Holder’s nominee or nominees, the full number of shares of Common Shares Stock to which such Holder shall be entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Shares Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Shares Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 13.04Section 14.04, no adjustment shall be made for dividends on any shares of Common Shares Stock issued upon the conversion of any Note as provided in this Article 1314.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below in this Section 13.02(h), and the Company will shall not adjust the Conversion Rate for any accrued and unpaid interest interest, if any, on any converted the Notes. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common SharesStock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of at the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided, however, provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, any Redemption Date described in clause (2) above or any Fundamental Change Repurchase Date described in clause (3) above shall, in each case, shall receive the full interest payment due on the Maturity Date or the applicable Interest Payment Date, as the case may be, in cash regardless of whether their Notes have been converted following such Regular Record Date.
(i) The Person in whose name any the shares of Common Shares Stock shall be issuable upon conversion shall be treated as a shareholder stockholder of record of such shares as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement applies to such conversionSettlement) or as of the close of business on the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement applies to such conversionSettlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional share of Common Share Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Share Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date, Date (in the case of Physical Settlement, ) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period, Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be issuable issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 13.0214.02, Section 13.03(b14.03(b) and Section 13.07(a14.07(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying or delivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Physical Settlement”), ) or a combination of cash and shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Combination Settlement”), at its election, as set forth in this Section 13.02, subject to the requirements of Section 13.0714.02.
(i) All conversions of Called Notes for which the relevant Conversion Date occurs during a the related Redemption Period shall be settled using the same Settlement Method, and all conversions for which the relevant Conversion Date occurs on or after December 115, 2023 2025, shall be settled using the same Settlement Method.
(ii) Except for any conversions of Called Notes for which the relevant Conversion Date occurs during a Redemption Period Period, and any conversions for which the relevant Conversion Date occurs on or after December 115, 20232025, and except to the extent the Company has irrevocably elected Physical Settlement pursuant to Section 14.01(b)(ii) in a notice as described in such Section, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates.
(iii) If, in respect of any Conversion Date (or any conversion for which period described in the relevant Conversion Date occurs during a Redemption Period on or after December 1third immediately succeeding set of parentheses, 2023as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company Company, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of (x) any conversions of any Called Notes for which the relevant Conversion Date occurs (A) during a the applicable Redemption Period, in the applicable Redemption relevant Notice or of Redemption, (By) any conversions of Notes for which the relevant Conversion Date occurs on or after December 115, 20232025, no later than December 15, 2025, or (z) any conversions of Notes for which the close Company has irrevocably elected Physical Settlement pursuant to Section 14.01(b)(ii) in a notice as described in such section) (in each case, the “Settlement Method Election Deadline”). Such Settlement Notice shall specify the relevant Settlement Method and in the case of business on an election of Combination Settlement, the Business Day immediately preceding December 1, 2023relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company does not elect a Settlement Method prior to the relevant Settlement Method Election Deadline with respect to a conversion, the Company shall no longer have the right to elect a Settlement Method with respect to any conversion prior to the deadline set forth in the immediately preceding sentenceon such Conversion Date or during such period, then and the Company shall be deemed to have elected the Default Settlement Method in with respect of to such conversion. Such Settlement Notice, if provided, shall specify the relevant Settlement Method and, in the case of Combination Settlement, the applicable Specified Dollar Amount. If the Company delivers a Settlement Notice electing Combination Settlement (or is deemed to have elected Combination Settlement) in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. For the avoidance of doubt, the Company’s failure to so select timely elect a Settlement Method or specify the applicable Specified Dollar Amount when so permitted shall not constitute a Default under this Indenture. By written notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, from time to time, change the Default Settlement Method prior to December 15, 2025. In addition, by notice to all Holders, the Company may, prior to December 15, 2025, at its option, elect to irrevocably fix the Settlement Method to any Settlement Method that the Company is then permitted to elect, including Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 or Event with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above a specific amount set forth in such election notice. Concurrently with providing notice to all Holders of an election to change the Default under Settlement Method or irrevocably fix the Settlement Method, the Company shall promptly either post an announcement on its website or issue a report on Form 8-K (or any successor form) disclosing such Default Settlement Method or irrevocably fixed Settlement Method. If the Company changes the Default Settlement Method or irrevocably elects to fix the Settlement Method, in either case, to Combination Settlement with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above a specific amount, the Company will, after the date of such change or election, as the case may be, inform Holders converting their Notes through the Trustee in writing of such Specified Dollar Amount no later than the relevant Settlement Method Election Deadline, or, if the Company does not timely notify Holders, such Specified Dollar Amount will be the specific amount set forth in the election notice or, if no specific amount was set forth in the election notice, such Specified Dollar Amount will be $1,000 per $1,000 principal amount of Notes. Such change in the Default Settlement Method or irrevocable election shall apply for all conversions of Notes with Conversion Dates occurring subsequent to delivery of such notice; provided, however, that no such change in the Default Settlement Method or irrevocable election will affect any Settlement Method theretofore elected (or deemed to be elected) with respect to any Note. For the avoidance of doubt, such an irrevocable election, if made by the Company, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(m). By notice to the HoldersHowever, the Company may change the Default Settlement Method nonetheless choose to any permitted Settlement Method, except it may not change the Default Settlement Method during any Redemption Period (in respect of Notes converted with a Conversion Date occurring during execute such Redemption Period) or on or after December 1, 2023 (in respect of Notes converted with a Conversion Date that occurs on or after December 1, 2023)an amendment at its option.
(iv) The cash, shares of Common Shares Stock or combination of cash and shares of Common Shares Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows follows:
(A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted:
(A) if Physical Settlement applies to such conversion, converted a number of shares of Common Shares Stock equal to the Conversion Rate in effect on the Conversion Date for such conversionDate;
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement applies to such conversionSettlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 25 40 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement applies to such conversionSettlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 25 40 consecutive Trading Days during the related Observation Period.
(v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Share, if anyStock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the sameDaily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 13.02(e14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the Applicable Procedures applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest any Special Interest payable on the next Special Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”” which notice shall be irrevocable, in either case) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Shares Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest any Special Interest payable on the next Special Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 13 14 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 14.0215.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 13.03(b14.03(b) and Section 13.07(a14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement applies(provided that, with respect to any Conversion Date following March 1, 2026 where Physical Settlement applies to the related conversion, the Company shall settle any such conversion on the Maturity Date), or on the second Business Day immediately following the last Trading Day of the Observation Period, if in the case of any other Settlement Method appliesMethod. If any shares of Common Shares Stock are due to a converting Holder, the Company shall issue or cause to be issued, and deliver (or otherwise cause to be deliveredif applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of shares of Common Shares Stock to which such Holder shall be entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Shares Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Shares Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 13.0414.04, no adjustment shall be made for dividends on any shares of Common Shares Stock issued upon the conversion of any Note as provided in this Article 1314.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interestSpecial Interest, if any, except as set forth below in this Section 13.02(h), and the Company will not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notesbelow. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interestSpecial Interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interestSpecial Interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common SharesStock, any accrued and unpaid interest Special Interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Special Interest Record DateDate for the payment of Special Interest, Holders of such Notes as of the close of business on such Regular Special Interest Record Date will receive the full amount of interest any Special Interest payable on such Notes on the corresponding Special Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Special Interest Record Date to the open of business on the immediately following Special Interest Payment Date must be accompanied by funds equal to the amount of interest any Special Interest payable on the Notes so converted; provided, however, provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding March 1, 2026, if Special Interest is payable on the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Special Interest Record Date and on or prior to the Business Trading Day immediately following the corresponding Special Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Special Interest Record Date and on or prior to the Business Day immediately following the corresponding Special Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, shall receive the full interest payment due on Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date.
(i) The Person in whose name any Common Shares shall be issuable upon conversion shall be treated as a shareholder of record of such shares as of the close of business on the relevant Conversion Date (if Physical Settlement applies to such conversion) or as of the close of business on the last Trading Day of the relevant Observation Period (if Combination Settlement applies to such conversion), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional Common Share upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Common Share issuable upon conversion based on the Daily VWAP for the relevant Conversion Date, in the case of Physical Settlement, or based on the Daily VWAP for the last Trading Day of the relevant Observation Period, in the case of Combination Settlement. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be issuable upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.Payme
Appears in 1 contract
Sources: Indenture (Everbridge, Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 13.0214.02, Section 13.03(b14.03(b) and Section 13.07(a14.07(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying pay or deliveringdeliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Physical Settlement”), ) or a combination of cash and shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Combination Settlement”), at its election, as set forth in this Section 13.02, subject to the requirements of Section 13.0714.02.
(i) All conversions for which the relevant Conversion Date occurs occurring (x) on or after July 1, 2027 or (y) during a Redemption Period shall be settled using the same Settlement Method, and all conversions for which the relevant Conversion Date occurs on or after December 1, 2023 shall be settled using the same Settlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs during a Redemption Period and any conversions for which the relevant Conversion Date occurs on or after December July 1, 20232027, the Company shall use the same Settlement Method for all conversions with occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with that occur on different Conversion Dates.
(iii) If, in respect of any Conversion Date (or any conversion for which the relevant Conversion Date occurs during a Redemption Period period on or after December July 1, 20232027, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company shall deliver such Settlement Notice to converting Holders Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Scheduled Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions of any Notes for which the relevant Conversion Date occurs (Ai) during a Redemption Period, Period in the applicable related Redemption Notice or (Bii) on or after December July 1, 20232027, no later than the close of business on the Business Scheduled Trading Day immediately preceding December July 1, 20232027). If the Company does not timely elect a Settlement Method with respect to any conversion prior to the deadline set forth in the immediately preceding sentence, then the Company shall no longer have the right to elect Cash Settlement or Physical Settlement for such conversion or during such period and the Company shall be deemed to have elected the Default Combination Settlement Method in respect of such conversionits Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice, if provided, Notice shall specify the relevant Settlement Method and, and in the case of an election of Combination Settlement, the applicable relevant Settlement Notice shall indicate the Specified Dollar AmountAmount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. Prior to July 1, 2027, the Company may, at its election, by notice to Holders, the Trustee, and the Conversion Agent (if other than the Trustee), elect to irrevocably fix the Settlement Method to any Settlement Method that the Company is then permitted to elect (such election, an “Irrevocable Settlement Election”) (which, for the avoidance of doubt, shall exclude any conversion during a Redemption Period deemed “in connection with” such Optional Redemption pursuant to this Indenture where the related Redemption Notice Date occurs prior to such Irrevocable Settlement Election) including Combination Settlement with a Specified Dollar Amount of $1,000 per $1,000 principal amount of Notes to be converted with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above a specific amount, the Company will, after the date of such Irrevocable Settlement Election, inform Holders converting their Notes, the Trustee and the Conversion Agent (if other than the Trustee) of such Specified Dollar Amount no later than the close of business on the Trading Day immediately following the related Conversion Date, or, if the Company does not timely notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) of such Specified Dollar Amount will be the specific amount set forth in the election notice unless, if no specific amount was set forth in the election notice, such Specified Dollar Amount will be $1,000 per $1,000 principal amount of Notes. The Irrevocable Settlement Election will apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such notice (other than with respect to conversions during a Redemption Period as set forth above). For the avoidance of doubt, such an irrevocable election, if made, will be effective without the Company’s failure need to so select a Settlement Method or Specified Dollar Amount when so permitted shall not constitute a Default or Event of Default under amend this Indenture or the Notes. By notice to the HoldersHowever, the Company may change nonetheless choose to execute such an amendment at the Default Settlement Method Company’s option pursuant to any permitted Settlement Method, except it may not change the Default Settlement Method during any Redemption Period (in respect of Notes converted with a Conversion Date occurring during such Redemption Period) or on or after December 1, 2023 (in respect of Notes converted with a Conversion Date that occurs on or after December 1, 2023Section 10.01(j).
(iv) The cash, shares of Common Shares Stock or combination of cash and shares of Common Shares Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows follows:
(A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted:
(A) if Physical Settlement applies to such conversion, converted a number of shares of Common Shares Stock equal to the Conversion Rate in effect on the Conversion Date for such conversionDate;
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement applies to such conversionSettlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 25 30 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement applies to such conversionSettlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 25 30 consecutive Trading Days during the related Observation Period.
(v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Share, if anyStock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the sameDaily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 13.02(e14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the Applicable Procedures procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Shares Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h). The Trustee (and and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 13 14 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 14.0215.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 13.03(bSection 14.03(b) and Section 13.07(a14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement appliesSettlement, or on the second Business Day immediately following the last Trading Day of the relevant Observation Period, if in the case of any other Settlement Method appliesMethod; provided that, with respect to any Conversion Date occurring on or after July 1, 2027, the Company will settle any such conversion for which Physical Settlement is applicable on the Maturity Date. If any shares of Common Shares Stock are due to a converting HolderHolders, the Company shall issue and deliver (or otherwise cause to be delivered) issued, and deliver to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common Shares Stock to which such Holder shall be entitled, in book-entry format through the Depositary, entitled in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Shares Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Shares Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 13.0414.04, no adjustment shall be made for dividends on any shares of Common Shares Stock issued upon the conversion of any Note as provided in this Article 1314.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below in this Section 13.02(h)below, and the Company will shall not be required to adjust the Conversion Rate for the Notes for any accrued and unpaid interest on any converted the Notes. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not includingexcluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not includingexcluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common SharesStock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular an Interest Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Interest Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Interest Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of any interest payable on the Notes so converted; provided, however, provided that no such payment shall be required (1) for conversions following the Regular Interest Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Fundamental Change Repurchase Date that is after a Regular an Interest Record Date and on or prior to the Business Day immediately following succeeding the corresponding Interest Payment Date; (3) if the Company has specified for conversions during a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment DateRedemption Period; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Interest Record Date immediately preceding the Maturity Date, Date shall receive the full interest payment due on the Maturity Date, any Fundamental Change Repurchase Date in cash or any Redemption Date, as the case may be, or other applicable Interest Payment Date regardless of whether their Notes have been converted converted, redeemed and/or repurchased, as applicable, following such Regular Interest Record Date.
(i) The Person in whose name the certificate for any shares of Common Shares shall be issuable Stock delivered upon conversion is registered shall be treated as a shareholder stockholder of record of such shares as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement applies to such conversionSettlement) or as of the close of business on the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement applies to such conversionSettlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional share of Common Share Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Share Stock issuable upon conversion based on the Daily VWAP for on the relevant Conversion Date, Date (in the case of Physical Settlement, ) or based on the Daily VWAP for on the last Trading Day of the relevant Observation Period, Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be issuable upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.t
Appears in 1 contract
Sources: Indenture (Nutanix, Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 13.0214.02, Section 13.03(b14.03(b) and Section 13.07(a14.07(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying pay or deliveringdeliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Physical Settlement”), ) or a combination of cash and shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Combination Settlement”), at its election, as set forth in this Section 13.02, subject to the requirements of Section 13.0714.02.
(i) All conversions for which the relevant Conversion Date occurs during after the Company’s issuance of a Redemption Period shall be settled using Notice with respect to the same Settlement MethodNotes and prior to the related Redemption Date, and all conversions for which the relevant Conversion Date occurs on or after December February 1, 2023 2028 shall be settled using the same Settlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs during after the Company’s issuance of a Redemption Period Notice with respect to the Notes but prior to the related Redemption Date, and any conversions for which the relevant Conversion Date occurs on or after December February 1, 20232028, the Company shall use the same Settlement Method for all conversions with occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with occurring on different Conversion Dates.
(iii) If, in respect of any Conversion Date (or any conversion for which one of the relevant Conversion Date occurs during a Redemption Period on or after December 1periods described in the fourth immediately succeeding set of parentheses, 2023as the case may be), the Company elects to a Settlement Method, the Company shall deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be)) in writing to converting Holders, the Company shall deliver such Settlement Notice to converting Holders Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions of any Notes for which the relevant Conversion Date occurs (Ax) during after the date of issuance of a Redemption Period, in Notice with respect to the applicable Redemption Notice or (B) on or after December 1, 2023, no later than Notes and prior to the close of business on the Business second Scheduled Trading Day immediately preceding December the related Redemption Date, in such Redemption Notice, or (y) on or after February 1, 20232028, no later than February 1, 2028). Delivery of such Settlement Notice is irrevocable. If the Company does not elect a Settlement Method with respect to any conversion prior to the deadline set forth in the immediately preceding sentence, then the Company shall no longer have the right to elect Cash Settlement or Physical Settlement for such conversion and the Company shall be deemed to have elected the Default Combination Settlement Method in respect of such conversionits Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice, if provided, Notice shall specify the relevant Settlement Method and, and in the case of an election of Combination Settlement, the applicable relevant Settlement Notice shall indicate the Specified Dollar AmountAmount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. For If the avoidance Company calls any Notes for redemption pursuant to Article 16, and the related Redemption Date is on or after February 1, 2028 (x) if the date of doubt, the Company’s failure relevant Redemption Notice occurs prior to so select the date the Company elects (or is deemed to have elected) a Settlement Method or Specified Dollar Amount when so permitted shall not constitute a Default or Event of Default under this Indenture or the Notes. By notice to the Holders, the Company may change the Default Settlement Method to any permitted Settlement Method, except it may not change the Default Settlement Method during any Redemption Period (in respect of Notes converted all conversions with a Conversion Date occurring during such Redemption Period) or on or after December February 1, 2023 (2028, then, in respect of Notes converted all conversions with a Conversion Date occurring on or after February 1, 2028, the Company must elect the Settlement Method that the Company elected (or was deemed to have elected) in such Redemption Notice and (y) if the date of such Redemption Notice occurs on or after December the date the Company elects (or is deemed to have elected) a Settlement Method in respect of all conversions with a Conversion Date occurring on or after February 1, 2023)2028, then, the Company must elect in such Redemption Notice the Settlement Method that the Company elected (or was deemed to have elected) in respect of all conversions with a Conversion Date occurring on or after February 1, 2028.
(iv) The cash, shares of Common Shares Stock or combination of cash and shares of Common Shares Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows follows:
(A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted:
(A) if Physical Settlement applies to such conversion, converted a number of shares of Common Shares Stock equal to the Conversion Rate in effect on the Conversion Date for such conversion(plus cash in lieu of any fractional share);
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement applies to such conversionSettlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 25 20 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement applies to such conversionSettlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 25 20 consecutive Trading Days during the related Observation PeriodPeriod (plus cash in lieu of any fractional share).
(v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common ShareStock, if anyand in any event within one (1) Business Day following the last day of the Observation Period, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) in writing of its determination of the sameDaily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock and the calculation thereof in reasonable detail or in such detail as requested by the Depositary. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(vi) At any time prior to February 1, 2028, the Company may irrevocably elect to satisfy its Conversion Obligation with respect to the Notes to be converted after the date of such election by delivering cash up to the aggregate principal amount of Notes to be converted, and shares of the Common Stock, cash or a combination thereof in respect of the remainder, if any, of its Conversion Obligation. Upon making such election, the Company shall promptly (x) provide written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) and (y) issue a report on Form 8-K or press release or publish on its website to announce that the Company has made such an election.
(b) Subject to Section 13.02(e14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the Applicable Procedures procedures of the Depositary in effect at that time (any instruction to convert transmitted to the Depositary shall be irrevocable) and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h) and/or all transfer or similar taxes as set forth in Section 14.02(e) and (ii) in the case of a Physical Note or Global Notes not approved for processing through the Depositary: (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Shares Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and documents, (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h) and (5) if required by Section 14.02(e), pay any transfer or similar taxes. The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 13 on 14 no more than one (1) Business Day after the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered for conversion by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 14.0215.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 13.03(b14.03(b) and Section 13.07(a14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement applies(provided that, with respect to any Conversion Date occurring on or after the Record Date immediately preceding the Maturity Date, the Company will deliver such consideration on the Maturity Date), or on the second Business Day immediately following the last Trading Day of the Observation Period, if in the case of any other Settlement Method appliesMethod. If any shares of Common Shares Stock are due to a converting Holder, the Company shall issue or cause to be issued, and deliver (or otherwise cause to be deliveredif applicable) to the Conversion Agent or to such converting Holder, or such Holder’s nominee or nominees, the full number of shares of Common Shares Stock to which such Holder shall be entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any Physical Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Physical Note so surrendered a new Physical Note or Physical Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Physical Note, without payment of any service charge by the converting Physical Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Physical Notes issued upon such conversion being different from the name of the Holder of the old Physical Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Shares Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Shares Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 13.0414.04, no adjustment shall be made for dividends on any shares of Common Shares Stock issued upon the conversion of any Note as provided in this Article 1314.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below in this Section 13.02(h), and the Company will shall not be required to adjust the Conversion Rate for any accrued and unpaid interest on any converted Notesinterest. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common SharesStock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding such Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so convertedconverted on the corresponding Interest Payment Date; provided, however, provided that no such payment shall be required (1) for conversions of Notes following the close of business on the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business second Scheduled Trading Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, Date or a Redemption Date shall receive the full interest payment due on the Maturity Date or on the Redemption Date in cash regardless of whether their Notes have been converted following such Regular Record Date.
(i) The Person in whose name any the shares of Common Shares Stock shall be issuable upon conversion shall be treated as a shareholder stockholder of record of such shares as of the close of business on the relevant Conversion Date (if Physical Settlement applies to such conversion) or as of the close of business on the last Trading Day of the relevant Observation Period (if Combination Settlement applies to such conversion), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional Common Share upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Common Share issuable upon conversion based on the Daily VWAP for the relevant Conversion Date, in the case of Physical Settlement, or based on the Daily VWAP for the last Trading Day of the relevant Observation Period, in the case of Combination Settlement. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be issuable upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.busi
Appears in 1 contract
Sources: Indenture (Century Aluminum Co)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 13.02Section 14.02, Section 13.03(bSection 14.03(b) and Section 13.07(aSection 14.07(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying pay or deliveringdeliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with Section 13.02(jsubsection (j) of this Section 14.02 (“Physical Settlement”), ) or a combination of cash and shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with Section 13.02(jsubsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 13.02, subject to the requirements of Section 13.07Section 14.02.
(i) All conversions for which the relevant Conversion Date occurs on or after December 15, 2035 or during a Redemption Period shall be settled using the same Settlement Methodperiod from, and including, December 15, 2021 to the close of business on the Business Day immediately preceding March 15, 2022, and all conversions for which the relevant Conversion Date occurs on or after December 1the Company’s issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date, 2023 shall be settled using the same Settlement MethodMethod (but the Company may elect different Settlement Methods for different periods referred to in this sentence).
(ii) Except for (A) any conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes but prior to the related Redemption Date, (B) any conversions for which the relevant Conversion Date occurs during a Redemption Period the period from, and including, December 15, 2021 to the close of business on the Business Day immediately preceding March 15, 2022 and (C) any conversions for which the relevant Conversion Date occurs on or after December 115, 20232035, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates.
(iii) If, in respect of any Conversion Date (or any conversion for which one of the relevant Conversion Date occurs during a Redemption Period on or after December 1periods described in the third immediately succeeding set of parentheses, 2023as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company Company, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions of any Notes for which the relevant Conversion Date occurs (Ax) after the date of issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date, in such Redemption Notice, (y) during a Redemption Periodthe period from, in the applicable Redemption Notice or (B) on or after and including, December 115, 2023, no later than 2021 to the close of business on the Business Day immediately preceding March 15, 2022, no later than December 115, 20232021 or (z) on or after December 15, 2035, no later than December 15, 2035). If the Company does not elect a Settlement Method with respect to any conversion prior to the deadline set forth in the immediately preceding sentence, then the Company shall no longer have the right to elect Cash Settlement or Physical Settlement for such Conversion Date or during such period, and the Company shall be deemed to have elected the Default Combination Settlement Method in respect of such conversionits Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice, if provided, Notice shall specify the relevant Settlement Method and, and in the case of an election of Combination Settlement, the applicable relevant Settlement Notice shall indicate the Specified Dollar AmountAmount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. For the avoidance of doubt, the Company’s failure to so select a Settlement Method or Specified Dollar Amount when so permitted shall not constitute a Default or Event of Default under this Indenture or the Notes. By notice to the Holders, the Company may change the Default Settlement Method to any permitted Settlement Method, except it may not change the Default Settlement Method during any Redemption Period (in respect of Notes converted with a Conversion Date occurring during such Redemption Period) or on or after December 1, 2023 (in respect of Notes converted with a Conversion Date that occurs on or after December 1, 2023).
(iv) The cash, shares of Common Shares Stock or combination of cash and shares of Common Shares Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows follows:
(A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted:
(A) if Physical Settlement applies to such conversion, converted a number of shares of Common Shares Stock equal to the Conversion Rate in effect on the Conversion Date for such conversionDate;
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement applies to such conversionSettlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 25 40 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement applies to such conversionSettlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 25 40 consecutive Trading Days during the related Observation Period.
(v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Share, if anyStock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the sameDaily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 13.02(eSection 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the Applicable Procedures procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(hSection 14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Shares Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(hSection 14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 13 Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered for conversion by a Holder thereof if such Holder has also delivered a Repurchase Notice or Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Repurchase Notice or Fundamental Change Repurchase Notice in accordance with Section 14.02Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b(b) above. Except as set forth in Section 13.03(bSection 14.03(b) and Section 13.07(aSection 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second third Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement appliesSettlement, or on the second third Business Day immediately following the last Trading Day of the Observation Period, if in the case of any other Settlement Method appliesMethod. If any shares of Common Shares Stock are due to a converting HolderHolders, the Company shall issue or cause to be issued, and deliver (or otherwise cause to be deliveredif applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of shares of Common Shares Stock to which such Holder shall be entitled, in certificate form or in book-entry format through the Depositaryformat, in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Shares Stock upon conversionconversion (which for the avoidance of doubt shall not include any capital gains, income, withholding or similar taxes), unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver (or refuse to instruct the stock transfer agent to deliver) the certificates representing the shares of Common Shares Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 13.04Section 14.04, no adjustment shall be made for dividends on any shares of Common Shares Stock issued upon the conversion of any Note as provided in this Article 1314.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below in this Section 13.02(h), and the Company will not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notesbelow. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common SharesStock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided, however, provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) for conversions following the Regular Record Date immediately preceding March 15, 2022; (3) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (34) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (45) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, Date shall receive the full interest payment due on the Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date.
(i) The Person in whose name any the shares of Common Shares Stock shall be issuable upon conversion shall be treated as a shareholder stockholder of record of such shares as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement applies to such conversionSettlement) or as of the close of business on the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement applies to such conversionSettlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional share of Common Share Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Share Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date, Date (in the case of Physical Settlement, ) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period, Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be issuable issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 13.0214.02, Section 13.03(b14.03(b) and Section 13.07(a14.07(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying pay or deliveringdeliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Physical Settlement”), ) or a combination of cash and shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Combination Settlement”), at its election, as set forth in this Section 13.02, subject to the requirements of Section 13.0714.02.
(i) All conversions (x) for which the relevant Conversion Date occurs during after the Company’s issuance of a Redemption Period shall be settled using Notice with respect to the same Settlement Method, Notes and all conversions prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date (y) for which the relevant Conversion Date occurs on or after December June 1, 2023 2029 and (z) following the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(iii)(B), in each case shall be settled using the same Settlement Method.
(ii) Except (w) for any conversions for which the relevant Conversion Date occurs during after the Company’s issuance of a Redemption Period and Notice with respect to the Notes but prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date, (x) for any conversions for which the relevant Conversion Date occurs on or after December June 1, 20232029, (y) to the extent the Company elects Physical Settlement to apply pursuant to Section 14.01(b)(ii) and (z) for any conversions following the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(iii)(B), in each case the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates.
(iii) If(A) Subject to the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(iii)(B), if, in respect of any Conversion Date (or any conversion for which one of the relevant Conversion Date occurs during a Redemption Period on or after December 1periods described in the third immediately succeeding set of parentheses, 2023as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company Company, through the Conversion Agent (acting upon the written direction of the Company), shall deliver such Settlement Notice to the Trustee and the converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions of any Notes (x) for which the relevant Conversion Date occurs (A) during on or after the date of issuance of a Redemption PeriodNotice with respect to the Notes and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date, in the applicable such Redemption Notice or (B) on or after December June 1, 20232029, no later than the close of business on the Business Day immediately preceding December June 1, 20232029 or (y) for which the Company has irrevocably elected Physical Settlement pursuant to Section 14.01(b)(ii), in the related notice described therein). If the Company does not elect a Settlement Method with respect to any conversion prior to the deadline set forth in the immediately preceding sentence, then the Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to the relevant Conversion Date (or such period, as the case may be) and the Company shall be deemed to have elected the Default Combination Settlement Method in respect of such conversionits Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice, if provided, Notice shall specify the relevant Settlement Method and, and in the case of an election of Combination Settlement, the applicable relevant Settlement Notice shall indicate the Specified Dollar AmountAmount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. For the avoidance of doubt, the Company’s failure to so select a Settlement Method or Specified Dollar Amount when so permitted shall not constitute a Default or Event of Default under this Indenture or the Notes. By notice to the Holders, the Company may change the Default Settlement Method to any permitted Settlement Method, except it may not change the Default Settlement Method during any Redemption Period (in respect of Notes converted with a Conversion Date occurring during such Redemption Period) or on or after December 1, 2023 (in respect of Notes converted with a Conversion Date that occurs on or after December 1, 2023).
(iv) The cash, Common Shares or combination of cash and Common Shares in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows in respect of each $1,000 principal amount of Notes being converted:
(A) if Physical Settlement applies to such conversion, a number of Common Shares equal to the Conversion Rate in effect on the Conversion Date for such conversion;
(B) if Cash Settlement applies to such conversion, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 25 consecutive Trading Days during the related Observation Period; and
(C) if Combination Settlement applies to such conversion, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 25 consecutive Trading Days during the related Observation Period.
(v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional Common Share, if any, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the same. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 13.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the Applicable Procedures and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any Common Shares to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 13 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 14.02. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 13.03(b) and Section 13.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if Physical Settlement applies, or on the second Business Day immediately following the last Trading Day of the Observation Period, if any other Settlement Method applies. If any Common Shares are due to a converting Holder, the Company shall issue and deliver (or otherwise cause to be delivered) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of Common Shares to which such Holder shall be entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any Common Shares upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the Common Shares being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 13.04, no adjustment shall be made for dividends on any Common Shares issued upon the conversion of any Note as provided in this Article 13.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below in this Section 13.02(h), and the Company will not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and Common Shares, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided, however, that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, shall receive the full interest payment due on Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date.
(i) The Person in whose name any Common Shares shall be issuable upon conversion shall be treated as a shareholder of record of such shares as of the close of business on the relevant Conversion Date (if Physical Settlement applies to such conversion) or as of the close of business on the last Trading Day of the relevant Observation Period (if Combination Settlement applies to such conversion), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional Common Share upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Common Share issuable upon conversion based on the Daily VWAP for the relevant Conversion Date, in the case of Physical Settlement, or based on the Daily VWAP for the last Trading Day of the relevant Observation Period, in the case of Combination Settlement. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be issuable upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Sources: Indenture (MICROSTRATEGY Inc)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 13.0214.02, Section 13.03(b14.03(b) and Section 13.07(a14.07(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying pay or deliveringdeliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Physical Settlement”), ) or a combination of cash and shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Combination Settlement”), at its election, as set forth in this Section 13.02, subject to the requirements of Section 13.0714.02.
(i) All conversions for which the relevant Conversion Date occurs during a Redemption Period shall be settled using the same Settlement Methodon or after February 1, 2024, and all conversions for which the relevant Conversion Date occurs on or after December 1the Company’s issuance of a Notice of Redemption with respect to the Notes and prior to the related Redemption Date, 2023 shall be settled using the same Settlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs during a Redemption Period on or after February 1, 2024, and any conversions for which the relevant Conversion Date occurs on or after December 1, 2023the Company’s issuance of a Notice of Redemption with respect to the Notes but prior to the related Redemption Date, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates.
(iii) If, in respect of any Conversion Date (or any conversion for which one of the relevant Conversion Date occurs during a Redemption Period on or after December 1periods described in the third immediately succeeding set of parentheses, 2023as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company Company, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions of any Notes for which the relevant Conversion Date occurs (Ax) during after the date of issuance of a Notice of Redemption Periodwith respect to the Notes and prior to the related Redemption Date, in the applicable Redemption such Notice of Redemption, or (By) on or after December February 1, 20232024, no later than the close of business on the Business Day immediately preceding December February 1, 20232024). If the Company does not elect a Settlement Method with respect to any conversion prior to the deadline set forth in the immediately preceding sentence, then the Company shall be deemed to have elected settle such conversions using the Default Settlement Method in respect of such conversionMethod. Such Settlement Notice, if provided, Notice shall specify the relevant Settlement Method and, in the case of an election of Combination Settlement, the applicable relevant Settlement Notice shall indicate the Specified Dollar AmountAmount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes to be converted in such Settlement Notice, or if Combination Settlement otherwise applies but the Company does not timely notify holders of the Specified Dollar Amount per $1,000 principal amount of Notes, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. For the avoidance of doubtAt any time prior to February 1, the Company’s failure to so select a Settlement Method or Specified Dollar Amount when so permitted shall not constitute a Default or Event of Default under this Indenture or the Notes. By notice to the Holders2024, the Company may change the Default Settlement Method irrevocably elect to any permitted Settlement Method, except it may not change the Default Settlement Method during any Redemption Period (in respect of Notes converted with a Conversion Date settle all conversions occurring during such Redemption Period) or on or after December 1the date the Company gives notice thereof to Holders, 2023 the Trustee and the Conversion Agent (in respect of Notes converted if other than the Trustee) through Combination Settlement with a Conversion Date that occurs on or after December 1, 2023)Specified Dollar Amount the Company elects.
(iv) The cash, shares of Common Shares Stock or combination of cash and shares of Common Shares Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows follows:
(A) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted:
(A) if Physical Settlement applies to such conversion, converted a number of shares of Common Shares Stock equal to the Conversion Rate in effect on the Conversion Date for such conversionDate;
(B) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement applies to such conversionSettlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 25 40 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement applies to such conversionSettlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 25 40 consecutive Trading Days during the related Observation Period.
(v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Share, if anyStock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the sameDaily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 13.02(e14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the Applicable Procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Shares Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents documents, (4) if required, pay all transfer and similar taxes as set forth in Section 14.02(d) and Section 14.02(e) and (45) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 13 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered for conversion by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 14.0215.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. Any exercise by a Holder of its conversion rights in respect of a Note shall be irrevocable.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 13.03(b14.03(b) and Section 13.07(a14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second third Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement appliesSettlement, or on the second third Business Day immediately following the last Trading Day of the Observation Period, if in the case of any other Settlement Method appliesMethod. If any shares of Common Shares Stock are due to a converting HolderHolders, the Company shall issue and deliver (or otherwise cause to be delivered) issued, and deliver to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common Shares Stock to which such Holder shall be entitled, in book-entry format through the Depositary, entitled in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute execute, and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered surrendered, a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Shares Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Shares Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 13.0414.04, no adjustment shall be made for dividends on any shares of Common Shares Stock issued upon the conversion of any Note as provided in this Article 1314.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian (if other than the Trustee) at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below in this Section 13.02(h), and the Company will not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notesbelow. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common SharesStock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided, however, provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, any Redemption Date described in clause (2) of the immediately preceding sentence and any Fundamental Change Repurchase Date described in clause (3) of the immediately preceding sentence shall receive the full interest payment due on the Maturity Date in cash or other applicable Interest Payment Date regardless of whether their Notes have been converted following such Regular Record Date.
(i) The Person in whose name any the shares of Common Shares Stock shall be issuable upon conversion shall be treated as a shareholder stockholder of record of such shares as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement applies to such conversionSettlement) or as of the close of business on the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement applies to such conversionSettlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional share of Common Share Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Share Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date, Date (in the case of Physical Settlement, ) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period, Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be issuable issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period Period, and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Sources: Indenture (Flexion Therapeutics Inc)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 13.0214.02, Section 13.03(b14.03(b) and Section 13.07(a14.07(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying pay or deliveringdeliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Physical Settlement”), ) or a combination of cash and shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Combination Settlement”), at its election, as set forth in this Section 13.02, subject to the requirements of Section 13.0714.02.
(i) All conversions for which the relevant Conversion Date occurs during a Redemption Period shall be settled using the same Settlement Method, and all conversions for which the relevant Conversion Date occurs occurring on or after December 1, 2023 2015 shall be settled using the same Settlement Method.
(ii) Except for any For all conversions for which the relevant Conversion Date occurs during a Redemption Period and any conversions for which the relevant Conversion Date occurs on or after prior to December 1, 20232015, the Company shall use the same Settlement Method for all conversions with occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with that occur on different Conversion DatesTrading Days, subject to clause (i) above.
(iii) If, The Company may elect a Settlement Method in respect of any Conversion Date (or any conversion for which the relevant Conversion Date occurs during a Redemption Period on or after prior to December 1, 20232015 (or for all Conversion Dates occurring during the period beginning on, but excluding, December 1, 2015 and ending on, and including, the Business Day immediately preceding the Maturity Date, as the case may be), the Company elects to deliver by delivering a notice (the “Settlement Notice”) to converting Holders of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), ) through the Company shall deliver such Settlement Notice to converting Holders Trustee no later than the close of business on the second Trading Day immediately following the relevant related Conversion Date (or, in the case of any conversions of any Notes for which the relevant Conversion Date occurs (A) during a Redemption Period, in the applicable Redemption Notice or (B) on or after December 1, 2023such period, no later than the close of business on the Business Day immediately preceding December 1, 20232015). If the Company does not elect a Settlement Method with respect to any conversion prior to the deadline set forth in the immediately preceding sentence, then the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected the Default Combination Settlement Method in respect of such conversionits Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice, if provided, Notice shall specify the relevant Settlement Method and, and in the case of an election of Combination Settlement, the applicable relevant Settlement Notice shall indicate the Specified Dollar Amount. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. For the avoidance of doubtThe Company may, the Company’s failure prior to so select December 1, 2015, at its option irrevocably elect in a global Settlement Method or Notice a particular Specified Dollar Amount when so permitted shall not constitute a Default or Event of Default under this Indenture or the Notes. By notice for all conversions subsequent to the Holders, the Company may change the Default such Settlement Method to any permitted Settlement Method, except it may not change the Default Settlement Method during any Redemption Period (in respect of Notes converted with a Conversion Date occurring during such Redemption Period) or on or after December 1, 2023 (in respect of Notes converted with a Conversion Date that occurs on or after December 1, 2023)Notice.
(iv) The cash, shares of Common Shares Stock or combination of cash and shares of Common Shares Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows in respect of each $1,000 principal amount of Notes being convertedfollows:
(A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement applies Settlement, the Company shall deliver to such conversion, the converting Holder a number of shares of Common Shares Stock equal to (1) the aggregate principal amount of Notes to be converted, divided by $1,000, multiplied by (2) the Conversion Rate in effect on the Conversion Date for such conversionDate;
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement applies to such conversionSettlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 25 30 consecutive Trading Days during the related Observation Conversion Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement applies to such conversionSettlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 25 30 consecutive Trading Days during the related Observation Conversion Period.
(v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Conversion Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional Common Share, if anyshare, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the sameDaily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 13.02(e14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the Applicable Procedures in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Shares Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 13 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered for conversion by a Holder thereof if such Holder ▇▇▇▇▇▇ has also delivered a Fundamental Change Repurchase Purchase Exercise Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Purchase Exercise Notice in accordance with Section 14.0215.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 13.03(b) and Section 13.07(a), the The Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second (i) three Business Day Days immediately following the relevant Conversion Date, if the Company elects Physical Settlement appliesSettlement, or (ii) three Business Days immediately following the last day of the Conversion Period, in the case of any other Settlement Method; provided, however, that if prior to the Conversion Date for any converted Notes the Common Stock has been replaced by Reference Property consisting solely of cash, the Company shall pay the conversion consideration due in respect of conversion on the second Business third Trading Day immediately following the last Trading Day of related Conversion Date, and, notwithstanding the Observation Periodforegoing, if any other Settlement Method appliesno Conversion Period shall apply to those conversions. If any shares of Common Shares Stock are due to a converting HolderHolders, the Company shall issue and deliver (or otherwise cause to be delivered) issued, and deliver to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common Shares Stock to which such Holder shall be entitled, in book-entry format through the Depositary, entitled in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Shares Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Shares Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 13.0414.04, no adjustment shall be made for dividends on any Common Shares shares issued upon the conversion of any Note as provided in this Article 1314.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversionconversion of a Note, a Holder shall not receive any separate additional cash payment for accrued and unpaid interest, if any, except as set forth below in this Section 13.02(h), and the Company will not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notesbelow. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a resultTherefore, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common SharesStock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Holders of Notes are converted after as of the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount payment of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversionconversion of such Notes at any time after the close of business on the such Regular Record Date. Notes surrendered for conversion during the period from by a Holder after the close of business on any Regular Record Date but prior to the open of business on the immediately following Interest Payment Date must be accompanied by funds payment of an amount equal to the amount of interest that will be payable on the Notes so converted; provided, however, provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Fundamental Change Purchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (32) if with respect to any Notes surrendered for conversions following the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to immediately preceding the Business Day immediately following the corresponding Interest Payment Maturity Date; or (43) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists exist at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, shall receive the full interest payment due on Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date.
(i) The Person in whose name the certificate for any shares of Common Shares shall be issuable Stock delivered upon conversion is registered shall be treated as a shareholder stockholder of record of such shares as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement applies to such conversionSettlement) or as of the close of business on the last Trading Day of the relevant Observation Conversion Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement applies to such conversionSettlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional share of Common Share Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Share Stock issuable upon conversion based on the Daily VWAP for on the relevant Conversion Date, Date (in the case of Physical Settlement, ) or based on the Daily VWAP for on the last Trading Day of the relevant Observation Period, Conversion Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be issuable issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation applicable Conversion Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Sources: Indenture (Akorn Inc)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 13.02Section 14.02, Section 13.03(bSection 14.03(b) and Section 13.07(aSection 14.07(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying pay or deliveringdeliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with Section 13.02(jsubsection (j) of this Section 14.02 (“Physical Settlement”), ) or a combination of cash and shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with Section 13.02(jsubsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 13.02, subject to the requirements of Section 13.07Section 14.02.
(i) All conversions for which the relevant Conversion Date occurs during after the Company’s issuance of a Notice of Redemption Period shall be settled using with respect to the same Settlement MethodNotes and prior to the related Redemption Date, and all conversions for which the relevant Conversion Date occurs on or after December 1June 15, 2023 2022, shall be settled using the same Settlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs during after the Company’s issuance of a Notice of Redemption Period with respect to the Notes, but prior to the related Redemption Date, and any conversions for which the relevant Conversion Date occurs on or after December 1June 15, 20232022, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates.
(iii) If, in respect of any Conversion Date (or any conversion for which one of the relevant Conversion Date occurs during a Redemption Period on or after December 1periods described in the fourth immediately succeeding set of parentheses, 2023as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company shall deliver such Settlement Notice to the Trustee, the Conversion Agent (if other than the Trustee) and converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions of any Notes for which the relevant Conversion Date occurs (Ax) during after the date of issuance of a Notice of Redemption Periodwith respect to the Notes and prior to the related Redemption Date, in the applicable such Notice of Redemption Notice or (By) on or after December 1June 15, 20232022, no later than the close of business on the Business Day immediately preceding December 1June 15, 20232022). If the Company does not elect a Settlement Method with respect to any conversion prior to the deadline set forth in the immediately preceding sentence, then the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected the Default Combination Settlement Method in respect of such conversionits Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice, if provided, Notice shall specify the relevant Settlement Method and, and in the case of an election of Combination Settlement, the applicable relevant Settlement Notice shall indicate the Specified Dollar AmountAmount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. For the avoidance of doubt, the Company’s failure to so select a Settlement Method or Specified Dollar Amount when so permitted shall not constitute a Default or Event of Default under this Indenture or the Notes. By notice to the Holders, the Company may change the Default Settlement Method to any permitted Settlement Method, except it may not change the Default Settlement Method during any Redemption Period (in respect of Notes converted with a Conversion Date occurring during such Redemption Period) or on or after December 1, 2023 (in respect of Notes converted with a Conversion Date that occurs on or after December 1, 2023).
(iv) The cash, shares of Common Shares Stock or combination of cash and shares of Common Shares Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows follows:
(A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted:
(A) if Physical Settlement applies to such conversion, converted a number of shares of Common Shares Stock equal to the Conversion Rate in effect on the Conversion Date for such conversion(plus cash in lieu of any fractional share of Common Stock issuable on conversion as set forth in Section 14.02(j));
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement applies to such conversionSettlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 25 50 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement applies to such conversionSettlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 25 50 consecutive Trading Days during the related Observation PeriodPeriod (plus cash in lieu of any fractional share of Common Stock issuable upon conversion as set forth in Section 14.02(j)).
(v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Share, if anyStock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the sameDaily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 13.02(eSection 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the Applicable Procedures procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(hSection 14.02(h) and (iii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Shares Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(hSection 14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 13 Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered for conversion by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 14.02Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b(b) above. Except as set forth in Section 13.03(bSection 14.03(b) and Section 13.07(aSection 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second third Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement appliesSettlement, or on the second third Business Day immediately following the last Trading Day of the Observation Period, if in the case of any other Settlement Method appliesMethod. If any shares of Common Shares Stock are due to a converting Holder, the Company shall issue or cause to be issued, and deliver (or otherwise cause to be deliveredif applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of shares of Common Shares Stock to which such Holder shall be entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any Physical Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Physical Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Shares Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Shares Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 13.04Section 14.04, no adjustment shall be made for dividends on any shares of Common Shares Stock issued upon the conversion of any Note as provided in this Article 1314.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below in this Section 13.02(h), and the Company will not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notesbelow. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common SharesStock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided, however, provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, Date shall receive the full interest payment due on the Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date.
(i) The Person in whose name any shares of Common Shares Stock shall be issuable upon conversion shall be treated as a shareholder stockholder of record of such shares as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement applies to such conversionSettlement) or as of the close of business on the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement applies to such conversionSettlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional share of Common Share Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Share Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date, Date (in the case of Physical Settlement, ) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period, Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be issuable issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Sources: Indenture (Maxwell Technologies Inc)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 13.0214.02, Section 13.03(b14.03(b) and Section 13.07(a14.07(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying pay or deliveringdeliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Physical Settlement”), ) or a combination of cash and shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Combination Settlement”), at its election, as set forth in this Section 13.02, subject to the requirements of Section 13.0714.02.
(i) All conversions for which the relevant Conversion Date occurs during a Redemption Period shall be settled using the same Settlement Methodon or after June 15, 2027, and all conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Notice of Redemption with respect to any Notes and prior to the close of business on or after December 1the second Scheduled Trading Day immediately preceding the related Redemption Date, 2023 shall be settled using the same Settlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs during after the Company’s issuance of a Notice of Redemption Period with respect to any Notes but prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date and any conversions for which the relevant Conversion Date occurs on or after December 1June 15, 20232027, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates.
(iii) If, in respect of any Conversion Date (or any conversion for which the relevant Conversion Date occurs during a Redemption Period on or after December 1period described in the third immediately succeeding set of parentheses, 2023as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company Company, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions of any Notes for which the relevant Conversion Date occurs (Ax) during after the date of issuance of a Notice of Redemption Period, in with respect to the applicable Redemption Notice or (B) on or after December 1, 2023, no later than Notes and prior to the close of business on the Business second Scheduled Trading Day immediately preceding December 1the related Redemption Date, 2023in such Notice of Redemption or (y) on or after June 15, 2027, no later than June 15, 2027) (in each case, the “Settlement Method Election Deadline”). If the Company does not elect a Settlement Method with in respect to of any conversion on such Conversion Date (or during such period, as the case may be) prior to the deadline set forth in relevant Settlement Method Election Deadline, the immediately preceding sentence, then Company shall no longer have the right to elect a Settlement Method and the Company shall be deemed to have elected the Default Settlement Method in with respect of to such conversion. Such Any Settlement Notice, if provided, Notice shall specify the relevant Settlement Method and, and in the case of an election of Combination Settlement, the applicable Specified Dollar Amount. If the Company delivers a relevant Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not shall indicate a Specified Dollar Amount per $1,000 principal amount of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes Notes. If the Company timely elects Combination Settlement with respect to a conversion but does not timely notify the converting Holder through the Trustee of the applicable Specified Dollar Amount, then the Specified Dollar Amount for such conversion shall be deemed to be $1,0001,000 per $1,000 principal amount of Notes. For the avoidance of doubt, the Company’s failure to so select timely elect a Settlement Method or specify the applicable Specified Dollar Amount when so permitted shall not constitute a default under this Indenture. The Company may, by notice to the Holders through the Trustee prior to June 15, 2027, irrevocably fix the Settlement Method to any Settlement Method that the Company is then permitted to elect, including Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 or with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above any specific amount set forth in such notice of election, that shall apply to all conversions with a Conversion Date that is on or after the date the Company sends such notice. If the Company changes the Default Settlement Method or Event elects to irrevocably fix the Settlement Method, in either case, to Combination Settlement with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above a specified amount, the Company shall, after the date of such change or election, as the case may be, inform Holders converting their Notes through the Trustee of such Specified Dollar Amount in respect of the relevant conversion or conversions no later than the relevant Settlement Method Election Deadline for such conversion or conversions, or, if the Company does not timely inform Holders of the Specified Dollar Amount, such Specified Dollar Amount shall be the specific amount set forth in the notice of such change or election or, if no specific amount was set forth in the notice of such change or election, such Specified Dollar Amount shall be $1,000 per $1,000 principal amount of Notes. Concurrently with providing notice to all Holders through the Trustee of such change in the Default under Settlement Method or election to irrevocably fix the Settlement Method, the Company shall promptly file a report on Form 8-K or issue a press release announcing that the Company has made such change to the Default Settlement Method or elected to irrevocably fix the Settlement Method, as the case may be. Notwithstanding the foregoing, no such change in the Default Settlement Method or irrevocable election of the Settlement Method shall affect any Settlement Method theretofore elected (or deemed to be elected) with respect to any Note pursuant to this Section 14.02. For the avoidance of doubt, such an irrevocable election of the Settlement Method, if made, shall be effective without the need to amend this Indenture or the Notes. By notice , including pursuant to the Holdersprovisions described in Section 10.01(l). However, the Company may change nonetheless choose to execute such an amendment at the Default Settlement Method to any permitted Settlement Method, except it may not change the Default Settlement Method during any Redemption Period (in respect of Notes converted with a Conversion Date occurring during such Redemption Period) or on or after December 1, 2023 (in respect of Notes converted with a Conversion Date that occurs on or after December 1, 2023)Company’s option.
(iv) The cash, shares of Common Shares Stock or combination of cash and shares of Common Shares Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows follows:
(A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted:
(A) if Physical Settlement applies to such conversion, converted a number of shares of Common Shares Stock equal to the Conversion Rate in effect on the Conversion Date for such conversionDate;
(B) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement applies to such conversionSettlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 25 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement applies to such conversionSettlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 25 consecutive Trading Days during the related Observation Period.
(v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Share, if anyStock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the sameDaily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 13.02(e14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the Applicable Procedures procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Shares Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, pay all applicable transfer or similar taxes, if any, pursuant to Section 14.02(e), (4) if required, furnish appropriate endorsements and transfer documents and (45) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 13 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered for conversion by a Holder thereof if such Holder ▇▇▇▇▇▇ has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 14.0215.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 13.03(b14.03(b) and Section 13.07(a14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement appliesSettlement, or on the second Business Day immediately following the last Trading Day of the Observation Period, if in the case of any other Settlement Method appliesMethod. If any shares of Common Shares Stock are due to a converting HolderHolders, the Company shall issue or cause to be issued, and deliver (or otherwise cause to be deliveredif applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of shares of Common Shares Stock to which such Holder shall be entitled, in certificate form or in book-entry format through the Depositaryformat, in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Shares Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the Common Shares Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 13.0414.04, no adjustment shall be made for dividends on any shares of Common Shares Stock issued upon the conversion of any Note as provided in this Article 1314.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below in this Section 13.02(h), and the Company will not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notesbelow. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common SharesStock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided, however, provided that no such payment shall be required (1) for conversions following after the close of business on the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Redemption Date that is after a Regular Record Date and on or prior to the Business second Scheduled Trading Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all applicable Holders of record at the close of business on the Regular Record Date immediately preceding the Maturity Date, Date or any Redemption Date shall receive the full interest payment due on the Maturity Date in cash or any Redemption Date, as the case may be, regardless of whether their Notes have been converted following such Regular Record Date.
(i) The Person in whose name any shares of Common Shares Stock shall be issuable upon conversion shall be treated as a shareholder of record of such shares as of the close of business on the relevant Conversion Date (if Physical Settlement applies to such conversion) or as of the close of business on the last Trading Day of the relevant Observation Period (if Combination Settlement applies to such conversion), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional Common Share upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Common Share issuable upon conversion based on the Daily VWAP for the relevant Conversion Date, in the case of Physical Settlement, or based on the Daily VWAP for the last Trading Day of the relevant Observation Period, in the case of Combination Settlement. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be issuable upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.up
Appears in 1 contract
Sources: Indenture (Wayfair Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 13.0214.02, Section 13.03(b14.03(b) and Section 13.07(a14.07(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying pay or deliveringdeliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Physical Settlement”), ) or a combination of cash and shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Combination Settlement”), at its election, as set forth in this Section 13.02, subject to the requirements of Section 13.0714.02.
(i) All conversions (x) for which the relevant Conversion Date occurs during after the Company’s issuance of a Redemption Period shall be settled using Notice with respect to the same Settlement Method, Notes and all conversions prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date (y) for which the relevant Conversion Date occurs on or after December 1June 15, 2023 2025 and (z) following the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(iii)(B), in each case shall be settled using the same Settlement Method.
(ii) Except (w) for any conversions for which the relevant Conversion Date occurs during after the Company’s issuance of a Redemption Period and Notice with respect to the Notes but prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date, (x) for any conversions for which the relevant Conversion Date occurs on or after December 1June 15, 20232025, (y) to the extent the Company elects Physical Settlement to apply pursuant to Section 14.01(b)(ii) and (z) for any conversions following the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(iii)(B), in each case the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates.
(iii) If(A) Subject to the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(iii)(B), if, in respect of any Conversion Date (or any conversion for which one of the relevant Conversion Date occurs during a Redemption Period on or after December 1periods described in the third immediately succeeding set of parentheses, 2023as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company Company, through the Trustee (acting upon the written direction of the Company), shall deliver such Settlement Notice to the Conversion Agent and the converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions of any Notes (x) for which the relevant Conversion Date occurs (A) during on or after the date of issuance of a Redemption PeriodNotice with respect to the Notes and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date, in the applicable such Redemption Notice or (B) on or after December 1June 15, 20232025, no later than the close of business on the Business Day immediately preceding December 1June 15, 20232025 or (y) for which the Company has irrevocably elected Physical Settlement pursuant to Section 14.01(b)(ii), in the related notice described therein). If the Company does not elect a Settlement Method with respect to any conversion prior to the deadline set forth in the immediately preceding sentence, then the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected the Default Combination Settlement Method in respect of such conversionits Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice, if provided, Notice shall specify the relevant Settlement Method and, and in the case of an election of Combination Settlement, the applicable relevant Settlement Notice shall indicate the Specified Dollar AmountAmount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. For the avoidance of doubt, the Company’s failure to so select a Settlement Method or Specified Dollar Amount when so permitted shall not constitute a Default or Event of Default under this Indenture or the Notes. By notice to the Holders, the Company may change the Default Settlement Method to any permitted Settlement Method, except it may not change the Default Settlement Method during any Redemption Period (in respect of Notes converted with a Conversion Date occurring during such Redemption Period) or on or after December 1, 2023 (in respect of Notes converted with a Conversion Date that occurs on or after December 1, 2023).
(iv) The cash, Common Shares or combination of cash and Common Shares in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows in respect of each $1,000 principal amount of Notes being converted:
(A) if Physical Settlement applies to such conversion, a number of Common Shares equal to the Conversion Rate in effect on the Conversion Date for such conversion;
(B) if Cash Settlement applies to such conversion, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 25 consecutive Trading Days during the related Observation Period; and
(C) if Combination Settlement applies to such conversion, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 25 consecutive Trading Days during the related Observation Period.
(v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional Common Share, if any, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the same. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 13.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the Applicable Procedures and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any Common Shares to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 13 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 14.02. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 13.03(b) and Section 13.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if Physical Settlement applies, or on the second Business Day immediately following the last Trading Day of the Observation Period, if any other Settlement Method applies. If any Common Shares are due to a converting Holder, the Company shall issue and deliver (or otherwise cause to be delivered) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of Common Shares to which such Holder shall be entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any Common Shares upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the Common Shares being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 13.04, no adjustment shall be made for dividends on any Common Shares issued upon the conversion of any Note as provided in this Article 13.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below in this Section 13.02(h), and the Company will not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and Common Shares, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided, however, that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, shall receive the full interest payment due on Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date.
(i) The Person in whose name any Common Shares shall be issuable upon conversion shall be treated as a shareholder of record of such shares as of the close of business on the relevant Conversion Date (if Physical Settlement applies to such conversion) or as of the close of business on the last Trading Day of the relevant Observation Period (if Combination Settlement applies to such conversion), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional Common Share upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Common Share issuable upon conversion based on the Daily VWAP for the relevant Conversion Date, in the case of Physical Settlement, or based on the Daily VWAP for the last Trading Day of the relevant Observation Period, in the case of Combination Settlement. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be issuable upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Sources: Indenture (MICROSTRATEGY Inc)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 13.02, Section 13.03(b) and Section 13.07(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying or deliveringpay (and deliver, as the case may be, if applicable) to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”)) or a combination of cash and shares of Common Stock, Common Shares, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) (“Physical Settlement”), or a combination of cash and Common Shares, together, if applicable, with cash in lieu of delivering any fractional Common Share in accordance with Section 13.02(j) 13.02 (“Combination Settlement”), at its election, as set forth in this Section 13.02, subject to the requirements of Section 13.07.
(i) All conversions for which the relevant Conversion Date occurs during after the Company’s issuance of a Redemption Period shall be settled using Notice with respect to the same Settlement MethodNotes and prior to the related Redemption Date, and all conversions for which the relevant Conversion Date occurs on or after December 1the 25th Scheduled Trading Day immediately preceding the Maturity Date, 2023 shall be settled using the same Settlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs during after the Company’s issuance of a Redemption Period Notice with respect to the Notes but prior to the related Redemption Date, and any conversions for which the relevant Conversion Date occurs on or after December 1, 2023the 25th Scheduled Trading Day immediately preceding the Maturity Date, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. The Company may, at any time prior to the 25th Scheduled Trading Day immediately preceding the Maturity Date, by written notice to Holders, the Trustee and the Conversion Agent, irrevocably elect a settlement method, irrevocably eliminate a Settlement Method or irrevocably elect a Specified Dollar Amount of at least $1,000 (or a minimum Specified Dollar Amount of at least $1,000) to be applicable to Combination Settlements.
(iii) If, in respect of any Conversion Date (or any conversion for which the relevant Conversion Date occurs during a Redemption Period on or after December 1period described in the third immediately succeeding set of parentheses, 2023as the case may be), the Company elects to deliver a written notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company shall deliver send such Settlement Notice to the Trustee, the Conversion Agent and converting Holders no later than the close of business on the first VWAP Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions of any Notes for which the relevant Conversion Date occurs (Ax) during after the date of issuance of a Redemption PeriodNotice with respect to the Notes and before the related Redemption Date, in the applicable such Redemption Notice or (By) on or after December 1, 2023the 25th Scheduled Trading Day immediately preceding the Maturity Date, no later than the close of business on the Business 25th Scheduled Trading Day immediately preceding December 1the Maturity Date). With respect to any conversion, 2023. If if the Company does not elect a Settlement Method with respect to any conversion prior to the deadline set forth in the immediately preceding sentence, then the Company shall no longer have the right to elect Cash Settlement and shall be deemed to have elected Combination Settlement with respect to such conversion and the Default Settlement Method in respect of such conversion. Such Settlement Notice, if provided, shall specify the relevant Settlement Method and, in the case of Combination Settlement, the applicable Specified Dollar AmountAmount per $1,000 principal amount of Notes will be equal to $1,000. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. For the avoidance of doubt, the Company’s failure to so select a Settlement Method or Specified Dollar Amount when so permitted shall not constitute a Default or Event of Default under this Indenture or the Notes. By notice Notwithstanding anything to the Holderscontrary herein, if the Company may change calls any Notes for redemption pursuant to Article 15 and the Default Settlement Method to any permitted Settlement Method, except it may not change the Default Settlement Method during any related Redemption Period (in respect of Notes converted with a Conversion Date occurring during such Redemption Period) or is on or after December 1the 25th Scheduled Trading Day immediately preceding the Maturity Date, 2023 (in respect of Notes converted then the Settlement Method that shall apply to all conversions with a Conversion Date that occurs on or after December 1, 2023)the date the Company sends the related Redemption Notice and on or before the Scheduled Trading Day immediately preceding such Redemption Date shall be set forth in such Redemption Notice and shall be the same Settlement Method that applies to all conversions with a Conversion Date that occurs on or after the 25th Scheduled Trading Day immediately preceding the Maturity Date.
(iv) The cash, and if applicable, shares of Common Shares or combination of cash and Common Shares Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows in respect of each $1,000 principal amount of Notes being convertedfollows:
(A) if Physical Settlement applies to such conversion, a number of Common Shares equal to the Conversion Rate in effect on the Conversion Date for such conversion;
(B) if Company elects Cash Settlement applies to such conversionSettlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 25 20 consecutive VWAP Trading Days during the related Observation Conversion Reference Period; and
(CB) if the Company elects (or is deemed to have elected) Combination Settlement applies to such conversionSettlement, the Company shall pay or (and deliver, as the case may be, to the converting Holder if applicable) in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 25 20 consecutive VWAP Trading Days during the related Observation Conversion Reference Period.
(v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Conversion Reference Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Share, if anyStock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) in writing of the sameDaily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 13.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the Applicable Procedures and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Shares Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents documents, (4) if required, pay all transfer or similar taxes as set forth in Section 13.02(d) and Section 13.02(e) and (45) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h) and (ii) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time and comply with Section 13.02(b)(3), (4) and (5). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 13 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered for conversion by a Holder thereof if such Holder ▇▇▇▇▇▇ has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 14.02. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 13.03(b) and Section 13.07(a), the Company shall pay or (and deliver, as the case may be, if applicable) the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if Physical Settlement applies, or on the second Business Day immediately following the last VWAP Trading Day of the Observation Conversion Reference Period, if any other Settlement Method applies. If any shares of Common Shares Stock are due to a converting HolderHolders, the Company shall issue and deliver (or otherwise cause to be delivered) issued, and deliver to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, a book-entry transfer of such shares of Common Stock through the Depositary for the full number of shares of Common Shares Stock to which such Holder shall be entitled, in book-entry format through the Depositary, entitled in satisfaction of the Company’s Conversion Obligation.
(d) In case any Physical Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Physical Holder of the Note so surrendered a new Physical Note or Physical Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Physical Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Physical Notes issued upon such conversion being different from the name of the Holder of the old Physical Notes surrendered for such conversion.
(e) If a Holder submits a Note any of its Notes for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue shares of any Common Shares Stock issued upon such conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Shares Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 13.04, no adjustment shall be made for dividends on any shares of Common Shares Stock issued upon the conversion of any Note as provided in this Article 13.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below in this Section 13.02(h), and the Company will not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notesbelow. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common SharesStock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record DateDate but prior to the opening of business on the Interest Payment Date to which that Regular Record Date relates, Holders of such Notes as of the close of business on such the Regular Record Date will receive receive, on the corresponding Interest Payment Date (or, at the Company’s election, sooner), the full amount of interest payable on such Notes on the corresponding such Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any that are converted with a Conversion Date occurring after a Regular Record Date bur prior to the open of business on the immediately following next Interest Payment Date Date, upon surrender for conversion, must be accompanied by funds equal to the amount of interest payable on the Notes so convertedconverted on the next succeeding Interest Payment Date; provided, however, provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists exist at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, shall receive the full interest payment due on Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record DateNotes.
(i) The Person in whose name any the shares of Common Shares Stock shall be issuable upon conversion shall be treated as a shareholder become the stockholder of record of with respect to such shares as of the close of business on the relevant Conversion Date (if Physical Settlement applies to such conversion) or Common Stock as of the close of business on the last VWAP Trading Day of the relevant Observation Period (if Combination Settlement applies to such conversion), as the case may beConversion Reference Period. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional share of Common Share Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Share Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date, in the case of Physical Settlement, or based on the Daily last VWAP for the last Trading Day of the relevant Observation Conversion Reference Period, in the case of Combination Settlement. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be issuable issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Conversion Reference Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Sources: Indenture (Burlington Stores, Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 13.0214.02, Section 13.03(b14.03(b) and Section 13.07(a14.07(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying pay or deliveringdeliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Physical Settlement”), ) or a combination of cash and shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Combination Settlement”), in each case, at its election, as set forth in this Section 13.02, subject to the requirements of Section 13.0714.02.
(i) All conversions for which the relevant Conversion Date occurs during a Redemption Period shall be settled using the same Settlement Methodon or after March 15, 2022, and all conversions for which the relevant Conversion Date occurs on or after December 1the Company’s issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date, 2023 shall be settled using the same Settlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs during after the Company’s issuance of a Redemption Period Notice with respect to the Notes but prior to the related Redemption Date and any conversions for which the relevant Conversion Date occurs on or after December 1March 15, 20232022, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates.
(iii) If, in respect of any Conversion Date (or any conversion for which one of the relevant Conversion Date occurs during a Redemption Period on or after December 1periods described in the third immediately succeeding set of parentheses, 2023as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company Company, through the Conversion Agent, shall deliver such Settlement Notice to converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions of any Notes for which the relevant Conversion Date occurs (Ax) during after the date of issuance of a Redemption PeriodNotice with respect to the Notes and prior to the related Redemption Date, in the applicable such Redemption Notice or (By) on or after December 1March 15, 20232022, no later than the close of business on the Business Day immediately preceding December 1March 15, 20232022). If the Company does not elect a Settlement Method with respect to any conversion prior to the deadline set forth in the immediately preceding sentence, then the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected the Default Combination Settlement Method in respect of such conversionits Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice, if provided, Notice shall specify the relevant Settlement Method and, and in the case of an election of Combination Settlement, the applicable relevant Settlement Notice shall indicate the Specified Dollar AmountAmount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. For the avoidance of doubt, the Company’s failure to so select a Settlement Method or Specified Dollar Amount when so permitted shall not constitute a Default or Event of Default under this Indenture or the Notes. By notice to the Holders, the Company may change the Default Settlement Method to any permitted Settlement Method, except it may not change the Default Settlement Method during any Redemption Period (in respect of Notes converted with a Conversion Date occurring during such Redemption Period) or on or after December 1, 2023 (in respect of Notes converted with a Conversion Date that occurs on or after December 1, 2023).
(iv) The cash, cash or shares of Common Shares Stock or combination of cash and shares of Common Shares Stock, as applicable, in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows follows:
(A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted:
(A) if Physical Settlement applies to such conversion, converted a number of shares of Common Shares Stock equal to the Conversion Rate in effect on the Conversion Date for such conversionDate;
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement applies to such conversionSettlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 25 40 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement applies to such conversionSettlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 25 40 consecutive Trading Days during the related Observation Period.
(v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Share, if anyStock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the sameDaily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 13.02(e14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the Applicable Procedures procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Shares Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 13 14 on the Conversion Date (or the next Business Day) for such conversion. No Notice of Conversion with respect to any Notes may be surrendered for conversion by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 14.0215.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 13.03(b14.03(b) and Section 13.07(a14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second third Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement appliesSettlement, or on the second third Business Day immediately following the last Trading Day of the Observation Period, if in the case of any other Settlement Method appliesMethod. If any shares of Common Shares Stock are due to a converting Holder, the Company shall issue or cause to be issued, and deliver (or otherwise cause to be deliveredif applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of shares of Common Shares Stock to which such Holder shall be entitled, in book-entry format through the Depositary (if the converted Notes are in book-entry format through the Depositary), in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Shares Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse tax to deliver the certificates representing the Common Shares being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentenceCompany.
(f) Except as provided in Section 13.0414.04, no adjustment shall be made for dividends on any shares of Common Shares Stock issued upon the conversion of any Note as provided in this Article 1314.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below in this Section 13.02(h), and the Company will not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notesbelow. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common SharesStock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided, however, provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, Date or any Redemption Date shall receive the full interest payment due on the Maturity Date in cash or such Redemption Date regardless of whether their Notes have been converted following such Regular Record DateDate and the converting Holder need not make a corresponding payment to the Company as described in the immediately preceding sentence.
(i) The Person in whose name any the shares of Common Shares Stock shall be issuable upon conversion shall be treated as a shareholder stockholder of record of such shares as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement applies to such conversionSettlement) or as of the close of business on the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement applies to such conversionSettlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional share of Common Share Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Share Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date, Date (in the case of Physical Settlement, ) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period, Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be issuable issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Sources: Indenture (SYNAPTICS Inc)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 13.0214.02, Section 13.03(b14.03(b) and Section 13.07(a14.07(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying pay or deliveringdeliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Physical Settlement”), ) or a combination of cash and shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Combination Settlement”), at its election, as set forth in this Section 13.02, subject to the requirements of Section 13.0714.02.
(i) All conversions for which the relevant Conversion Date occurs during a Redemption Period shall be settled using the same Settlement Methodon or after May 1, 2024, and all conversions for which the relevant Conversion Date occurs on or after December 1the Company’s issuance of a Redemption Notice and prior to the related Redemption Date, 2023 shall be settled using the same Settlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs during after the Company’s issuance of a Redemption Period Notice with respect to the Notes but prior to the related Redemption Date, and any conversions for which the relevant Conversion Date occurs on or after December May 1, 20232024, the Company shall use the same Settlement Method for all conversions with occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with that occur on different Conversion Dates.
(iii) If, in respect of any Conversion Date (or any conversion for which one of the relevant Conversion Date occurs during a Redemption Period on or after December 1periods described in the fourth immediately succeeding set of parentheses, 2023as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company shall deliver such Settlement Notice to converting Holders Holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions of any Notes for which the relevant Conversion Date occurs (Ax) during after the date of issuance of a Redemption PeriodNotice with respect to the Notes and prior to the second Scheduled Trading Day immediately preceding the related Redemption Date, in the applicable such Redemption Notice Notice, or (By) on or after December May 1, 20232024, no later than the close of business on the Business Scheduled Trading Day immediately preceding December May 1, 20232024). If the Company does not elect a Settlement Method with respect to any conversion prior to the deadline set forth in the immediately preceding sentence, then the Company shall no longer have the right to elect Cash Settlement or Physical Settlement for such conversion and the Company shall be deemed to have elected the Default Combination Settlement Method in respect of such conversionits Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes to be converted shall be equal to $1,000. Such Settlement Notice, if provided, Notice shall specify the relevant Settlement Method and, and in the case of an election of Combination Settlement, the applicable relevant Settlement Notice shall indicate the Specified Dollar AmountAmount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. For the avoidance of doubt, the Company’s failure to so select a Settlement Method or Specified Dollar Amount when so permitted shall not constitute a Default or Event of Default under this Indenture or the Notes. By notice Notwithstanding anything to the Holderscontrary above, if the Company may change calls any Notes for redemption, and the Default Settlement Method to any permitted Settlement Method, except it may not change the Default Settlement Method during any related Redemption Period (in respect of Notes converted with a Conversion Date occurring during such Redemption Period) or is on or after December May 1, 2023 (in respect of Notes converted 2024, then the Settlement Method that will apply to all conversions with a Conversion Date that occurs on or after December the date the Company sends such Redemption Notice and on or before the second Scheduled Trading Day immediately preceding the related Redemption Date shall be the same Settlement Method that applies to all conversions with a Conversion Date that occurs on or after May 1, 2023)2024.
(iv) The cash, shares of Common Shares Stock or combination of cash and shares of Common Shares Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows follows:
(A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted:
(A) if Physical Settlement applies to such conversion, converted a number of shares of Common Shares Stock equal to the Conversion Rate in effect on the Conversion Date for such (plus cash in lieu of any fractional share of Common Stock issuable upon conversion);
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement applies to such conversionSettlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 25 40 consecutive VWAP Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement applies to such conversionSettlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 25 40 consecutive VWAP Trading Days during the related Observation PeriodPeriod (plus cash in lieu of any fractional share of Common Stock issuable upon conversion).
(v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Share, if anyStock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the sameDaily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 13.02(e14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the Applicable Procedures in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h) and/or all transfer or similar taxes described herein, and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Shares Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h); and (5) if required, pay any transfer or similar taxes as described herein. The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 13 on 14 as soon as practical, but in any event, not later than the Trading Day immediately following the Conversion Date for such conversionDate. No Notice of Conversion with respect to any Notes may be surrendered for conversion by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 14.0215.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 13.03(b14.03(b) and Section 13.07(a14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement appliesSettlement, or on the second Business Day immediately following the last VWAP Trading Day of the Observation Period, if in the case of any other Settlement Method appliesMethod. If any shares of Common Shares Stock are due to a converting Holder, the Company shall issue or cause to be issued, and deliver (or otherwise cause to be deliveredif applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of shares of Common Shares Stock to which such Holder shall be entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Shares Stock upon conversion, unless the tax is due because the Holder requests any such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Shares Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 13.0414.04, no adjustment shall be made for dividends on any shares of Common Shares Stock issued upon the conversion of any Note as provided in this Article 1314.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below in this Section 13.02(h)below, and the Company will shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted the Notes. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common SharesStock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided, however, provided that no such payment shall be required (1) for conversions of the Notes following the close of business on the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business third Scheduled Trading Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the second Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, any Fundamental Change Repurchase Date or Redemption Date, in each case described above, shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted following such Regular Record Date.
(i) The Person in whose name any the shares of Common Shares Stock shall be issuable upon conversion shall be treated as a shareholder stockholder of record of such shares as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement applies to such conversionSettlement) or as of the close of business on the last VWAP Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement applies to such conversionSettlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional share of Common Share Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Share Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion DateDate or, if such Conversion Date is not a Trading Day, the immediately preceding Trading Day (in the case of Physical Settlement, ) or based on the Daily VWAP for the last VWAP Trading Day of the relevant Observation Period, Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be issuable issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Sources: Indenture (Blackline, Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Except as provided in Section 13.02, Section 13.03(b14.03(b) and Section 13.07(a14.07(a), upon conversion of any Note, on the second Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall satisfy its Conversion Obligation by paying or delivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (a “Cash Settlement”)Settlement Amount” equal to the sum of the Daily Settlement Amounts for each of the 40 consecutive Trading Days during the relevant Observation Period for such Note, Common Shares, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with Section 13.02(jsubsection (j) (“Physical Settlement”), or a combination of cash and Common Shares, together, if applicable, with cash in lieu of delivering any fractional Common Share in accordance with Section 13.02(j) (“Combination Settlement”), at its election, as set forth in this Section 13.02, subject to the requirements of Section 13.0714.02.
(i) All conversions for which the relevant Conversion Date occurs during a Redemption Period on or after February 1, 2026 shall be settled using the same Settlement Method, forms and all conversions for which the relevant Conversion Date occurs on or after December 1, 2023 shall be settled using the same Settlement Methodamounts of consideration.
(ii) Except for any conversions for which the relevant Conversion Date occurs during a Redemption Period and any conversions for which the relevant Conversion Date occurs on or after December February 1, 20232026, the Company shall use the same Settlement Method forms and amounts of consideration for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method forms and amounts of consideration with respect to conversions with different Conversion Dates.
(iii) If, in respect of any Conversion Date (or any conversion conversions for which the relevant Conversion Date occurs during a Redemption Period on or after December February 1, 20232026), the Company elects to deliver settle all or a notice (the “Settlement Notice”) portion of its Conversion Obligation in excess of the relevant Settlement Method principal portion of the Notes being converted in cash in respect of such Conversion Date (or such period, as the case may be), the Company shall deliver such Settlement Notice to inform converting Holders through (and upon a written request to) the Trustee of such election (the “Settlement Notice”) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions of any Notes for which the relevant Conversion Date occurs (A) during a Redemption Period, in the applicable Redemption Notice or (B) on or after December February 1, 20232026, no later than the close of business on the Business Day immediately preceding December February 1, 20232026) and the Company shall indicate in such Settlement Notice the percentage of the Conversion Obligation in excess of the principal portion of the Notes being converted that shall be paid in cash (the “Cash Percentage”). If the Company does not elect a Settlement Method with respect to any conversion Cash Percentage prior to the deadline set forth in the immediately preceding sentence, then the Company shall no longer have the right to elect a Cash Percentage with respect to any conversion on such Conversion Date or during such period, and the Company shall be deemed to have elected the Default Settlement Method in a Cash Percentage of 0% with respect of to such conversion. Such Settlement Notice, if provided, In no event shall specify the relevant Settlement Method and, in the case of Combination Settlement, the applicable Specified Dollar Amount. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. For the avoidance of doubt, the Company’s failure to so select make a Settlement Method or Specified Dollar Amount when so permitted shall not timely election of the Cash Percentage constitute a Default or an Event of Default under this Indenture or the Notes. By notice to the Holders, the Company may change the Default Settlement Method to any permitted Settlement Method, except it may not change the Default Settlement Method during any Redemption Period (in respect of Notes converted with a Conversion Date occurring during such Redemption Period) or on or after December 1, 2023 (in respect of Notes converted with a Conversion Date that occurs on or after December 1, 2023)Indenture.
(iv) The cash, Common Shares or combination of cash and Common Shares in respect of any conversion of Notes (the “Daily Settlement Amount”) shall be computed as follows in respect of each $1,000 principal amount of Notes being converted:
(A) if Physical Settlement applies to such conversion, a number of Common Shares equal to the Conversion Rate in effect on the Conversion Date for such conversion;
(B) if Cash Settlement applies to such conversionAmounts, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 25 consecutive Trading Days during the related Observation Period; and
(C) if Combination Settlement applies to such conversion, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 25 consecutive Trading Days during the related Observation Period.
(v) The Daily Net Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts, the Daily Net Settlement Amounts or (if applicable) and the Daily Conversion Values, as the case may be, Values and the amount of cash payable in lieu of delivering any fractional share of Common Share, if anyStock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) in writing of the sameDaily Settlement Amounts, the Daily Net Settlement Amounts (if applicable) and the Daily Conversion Values and the amount of cash payable in lieu of delivering any fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 13.02(e14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the Applicable Procedures applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Shares Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 13 14 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Holder ▇▇▇▇▇▇ has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 14.0215.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 13.03(b) and Section 13.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if Physical Settlement applies, or on the second Business Day immediately following the last Trading Day of the Observation Period, if any other Settlement Method applies. If any shares of Common Shares Stock are due to a converting Holder, the Company shall issue or cause to be issued, and deliver (or otherwise cause to be deliveredif applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of shares of Common Shares Stock to which such Holder shall be entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax or other similar governmental charge due on the issue of any shares of Common Shares Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Shares Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 13.0414.04, no adjustment shall be made for dividends on any shares of Common Shares Stock issued upon the conversion of any Note as provided in this Article 1314.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below in this Section 13.02(h), and the Company will not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notesbelow. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and Common SharesNotes, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided, however, provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (43) to the extent of any Defaulted Amountsoverdue interest, if any Defaulted Amounts overdue interest exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, Date shall receive the full interest payment due on the Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date.
(i) The Person in whose name any shares of Common Shares Stock shall be issuable upon conversion shall be treated as a shareholder stockholder of record of such shares as of the close of business on the relevant Conversion Date (if Physical Settlement applies to such conversion) or as of the close of business on the last Trading Day of the relevant Observation Period (if Combination Settlement applies to such conversion), as the case may bePeriod. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional share of Common Share Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Share Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date, in the case of Physical Settlement, or based on the Daily VWAP for the last Trading Day of the relevant Observation Period, in the case of Combination Settlement. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares shares, if any, that shall be issuable issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Sources: Indenture (Firstenergy Corp)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 13.0214.02, Section 13.03(b14.03(b) and Section 13.07(a14.07(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying pay or deliveringdeliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Physical Settlement”), ) or a combination of cash and shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Combination Settlement”), at its election, as set forth in this Section 13.02, subject to the requirements of Section 13.0714.02.
(i) All conversions (x) for which the relevant Conversion Date occurs during after the Company’s issuance of a Redemption Period shall be settled using Notice with respect to the same Settlement Method, Notes and all conversions prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date (y) for which the relevant Conversion Date occurs on or after December 1, 2023 2029 and (z) following the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(iii)(B), in each case shall be settled using the same Settlement Method.
(ii) Except (w) for any conversions for which the relevant Conversion Date occurs during after the Company’s issuance of a Redemption Period and Notice with respect to the Notes but prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date, (x) for any conversions for which the relevant Conversion Date occurs on or after December 1, 20232029, (y) to the extent the Company elects Physical Settlement to apply pursuant to Section 14.01(b)(ii) and (z) for any conversions following the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(iii)(B), in each case the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates.
(iii) If(A) Subject to the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(iii)(B), if, in respect of any Conversion Date (or any conversion for which one of the relevant Conversion Date occurs during a Redemption Period on or after December 1periods described in the third immediately succeeding set of parentheses, 2023as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company Company, shall deliver such Settlement Notice to the Trustee and the Conversion Agent (if other than the Trustee) and the converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions of any Notes (x) for which the relevant Conversion Date occurs (A) during on or after the date of issuance of a Redemption PeriodNotice with respect to the Notes and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date, in the applicable such Redemption Notice or (B) on or after December 1, 20232029, no later than the close of business on the Business Day immediately preceding December 1, 20232029 or (y) for which the Company has irrevocably elected Physical Settlement pursuant to Section 14.01(b)(ii), in the related notice described therein). If the Company does not elect a Settlement Method with respect to any conversion prior to the deadline set forth in the immediately preceding sentence, then the Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to the relevant Conversion Date (or such period, as the case may be) and the Company shall be deemed to have elected the Default Combination Settlement Method in respect of such conversionits Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice, if provided, Notice shall specify the relevant Settlement Method and, and in the case of an election of Combination Settlement, the applicable relevant Settlement Notice shall indicate the Specified Dollar AmountAmount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. For the avoidance of doubt, the Company’s failure to so select a Settlement Method or Specified Dollar Amount when so permitted shall not constitute a Default or Event of Default under this Indenture or the Notes. By notice to the Holders, the Company may change the Default Settlement Method to any permitted Settlement Method, except it may not change the Default Settlement Method during any Redemption Period (in respect of Notes converted with a Conversion Date occurring during such Redemption Period) or on or after December 1, 2023 (in respect of Notes converted with a Conversion Date that occurs on or after December 1, 2023).
(iv) The cash, Common Shares or combination of cash and Common Shares in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows in respect of each $1,000 principal amount of Notes being converted:
(A) if Physical Settlement applies to such conversion, a number of Common Shares equal to the Conversion Rate in effect on the Conversion Date for such conversion;
(B) if Cash Settlement applies to such conversion, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 25 consecutive Trading Days during the related Observation Period; and
(C) if Combination Settlement applies to such conversion, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 25 consecutive Trading Days during the related Observation Period.
(v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional Common Share, if any, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the same. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 13.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the Applicable Procedures and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any Common Shares to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 13 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 14.02. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 13.03(b) and Section 13.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if Physical Settlement applies, or on the second Business Day immediately following the last Trading Day of the Observation Period, if any other Settlement Method applies. If any Common Shares are due to a converting Holder, the Company shall issue and deliver (or otherwise cause to be delivered) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of Common Shares to which such Holder shall be entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any Common Shares upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the Common Shares being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 13.04, no adjustment shall be made for dividends on any Common Shares issued upon the conversion of any Note as provided in this Article 13.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below in this Section 13.02(h), and the Company will not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and Common Shares, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided, however, that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, shall receive the full interest payment due on Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date.
(i) The Person in whose name any Common Shares shall be issuable upon conversion shall be treated as a shareholder of record of such shares as of the close of business on the relevant Conversion Date (if Physical Settlement applies to such conversion) or as of the close of business on the last Trading Day of the relevant Observation Period (if Combination Settlement applies to such conversion), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional Common Share upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Common Share issuable upon conversion based on the Daily VWAP for the relevant Conversion Date, in the case of Physical Settlement, or based on the Daily VWAP for the last Trading Day of the relevant Observation Period, in the case of Combination Settlement. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be issuable upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Sources: Indenture (MARA Holdings, Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 13.0214.02, Section 13.03(b14.03(b) and Section 13.07(a14.07(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying pay or deliveringdeliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Class A Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Class A Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Physical Settlement”), ) or a combination of cash and shares of Class A Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Class A Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Combination Settlement”), at its election, as set forth in this Section 13.02, subject to the requirements of Section 13.0714.02.
(i) All conversions for which the relevant Conversion Date occurs during after the Company’s issuance of a Notice of Redemption Period shall be settled using with respect to the same Settlement MethodNotes and prior to the related Redemption Date, and all conversions for which the relevant Conversion Date occurs on or after December 1April 15, 2023 2025, shall be settled using the same Settlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs during after the Company’s issuance of a Notice of Redemption Period with respect to the Notes but prior to the related Redemption Date, and any conversions for which the relevant Conversion Date occurs on or after December 1April 15, 20232025, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates.
(iii) If, in respect of any Conversion Date (or any conversion for which the relevant Conversion Date occurs during a Redemption Period on or after December 1period described in the third immediately succeeding set of parentheses, 2023as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company Company, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions of any Notes for which the relevant Conversion Date occurs (Ax) during after the date of issuance of a Notice of Redemption Periodwith respect to the Notes and prior to the related Redemption Date, in the applicable such Notice of Redemption Notice or (By) on or after December 1April 15, 20232025, no later than the close of business on the Business Day immediately preceding December 1April 14, 20232025). If the Company does not elect a Settlement Method with respect to any conversion prior to the deadline set forth in the immediately preceding sentence, then the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected the Default Combination Settlement Method in respect of such conversionits Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice, if provided, Notice shall specify the relevant Settlement Method and, and in the case of an election of Combination Settlement, the applicable relevant Settlement Notice shall indicate the Specified Dollar AmountAmount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. For the avoidance of doubt, the Company’s failure to so select a Settlement Method or Specified Dollar Amount when so permitted shall not constitute a Default or Event of Default under this Indenture or the Notes. By notice to the Holders, the Company may change the Default Settlement Method to any permitted Settlement Method, except it may not change the Default Settlement Method during any Redemption Period (in respect of Notes converted with a Conversion Date occurring during such Redemption Period) or on or after December 1, 2023 (in respect of Notes converted with a Conversion Date that occurs on or after December 1, 2023).
(iv) The cash, shares of Class A Common Shares Stock or combination of cash and shares of Class A Common Shares Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows follows:
(A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted:
(A) if Physical Settlement applies to such conversion, converted a number of shares of Class A Common Shares Stock equal to the Conversion Rate in effect on the Conversion Date for such conversionDate;
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement applies to such conversionSettlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 25 40 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement applies to such conversionSettlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 25 40 consecutive Trading Days during the related Observation Period.
(v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the related Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Class A Common Share, if anyStock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the sameDaily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Class A Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 13.02(e14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the Applicable Procedures procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Class A Common Shares Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 13 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered for conversion delivered by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 14.0215.03. If a Holder submits its Notes for required repurchase, the Holder’s right to withdraw the Fundamental Change Repurchase Notice and convert the Notes that are subject to repurchase will terminate at the close of business on the Business Day immediately preceding the relevant Fundamental Change Repurchase Date. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 13.03(b14.03(b) and Section 13.07(a14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement appliesSettlement, or on the second Business Day immediately following the last Trading Day of the relevant Observation Period, if in the case of any other Settlement Method appliesMethod. If any shares of Class A Common Shares Stock are due to a converting Holder, the Company shall issue or cause to be issued, and deliver (or otherwise cause to be deliveredif applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of shares of Class A Common Shares Stock to which such Holder shall be entitled, in certificate form or in book-entry format through the Depositaryformat, in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or the Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Class A Common Shares Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Class A Common Shares Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 13.0414.04, no adjustment shall be made for dividends on any shares of Class A Common Shares Stock issued upon the conversion of any Note as provided in this Article 1314.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below in this Section 13.02(h), and the Company will not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notesbelow. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Class A Common SharesStock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided, however, provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, Date shall receive the full interest payment due on the Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date.
(i) The Person in whose name any the shares of Class A Common Shares Stock shall be issuable upon conversion shall be treated as a shareholder stockholder of record of such shares as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement applies to such conversionSettlement) or as of the close of business on the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement applies to such conversionSettlement), as the case may be). Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional share of Class A Common Share Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Class A Common Share Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date, Date (in the case of Physical Settlement, ) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period, Period (in the case of Combination Settlement). For each Note surrendered for conversion, conversion if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be issuable issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Sources: Indenture (Evolent Health, Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) . (a) Subject to this Section 13.0214.02, Section 13.03(b14.03(b) and Section 13.07(a14.07(a), upon conversion of any Note, the Company shall satisfy shall, at its Conversion Obligation by paying election, pay or deliveringdeliver, as the case may be, to the converting Holder, in respect full satisfaction of each $1,000 principal amount of Notes being convertedits Conversion Obligation, cash (“Cash Settlement”), shares of the Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Physical Settlement”), ) or a combination of cash and shares of the Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Combination Settlement”), at its election, as set forth in this Section 13.02, subject to the requirements of Section 13.0714.02.
(i) All conversions for which the relevant Conversion Date occurs during a Redemption Period on or after October 15, 2025 shall be settled using the same Settlement Method, and all conversions for which the relevant Conversion Date occurs on or after December 1, 2023 shall be settled using Method (including the same Settlement Method.
(ii) relative proportion of cash and/or shares of the Common Stock). Except for any conversions for which the relevant Conversion Date occurs during a Redemption Period and any conversions for which the relevant Conversion Date occurs on or after December 1October 15, 20232025, the Company shall use the same Settlement Method (including the same relative proportion of cash and/or shares of the Common Stock) for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates.
(iiiii) If, in respect of any Conversion Date (or any conversion for which the relevant Conversion Date occurs during a Redemption Period on or after December 1, 2023), If the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be)Method, the Company shall deliver notice to Holders through the Conversion Agent of such Settlement Notice to converting Holders Method the Company has selected no later than the close of business on the Trading Day immediately following the relevant related Conversion Date (or, or in the case of any conversions of any Notes for which the relevant Conversion Date occurs (A) during a Redemption Period, in the applicable Redemption Notice or (B) on or after December 1October 15, 20232025, no later than the close of business on the Business Day immediately preceding December 1October 15, 20232025). If the Company does not timely elect a Settlement Method Method, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to any conversion prior to the deadline set forth in the immediately preceding sentence, then that Conversion Date and the Company shall be deemed to have elected the Default Settlement Method in respect of such conversion. Such Settlement Notice, if provided, shall specify the relevant Settlement Method and, in the case of Combination Settlement, the applicable Specified Dollar Amount. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes to be converted in such Settlement NoticeObligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. If the Company has timely elected Combination Settlement in respect of any conversion but does not timely notify the Conversion Agent of the Specified Dollar Amount per $1,000 principal amount of Notes, the Specified Dollar Amount shall be deemed to be $1,000. For the avoidance of doubt, the Company’s failure to so select a Settlement Method or Specified Dollar Amount when so permitted shall not constitute a Default or Event of Default under this Indenture or the Notes. By notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company may change may, prior to October 15, 2025, at its option, irrevocably elect to satisfy its Conversion Obligations with respect to the Default Notes through any Settlement Method that the Company is then permitted to elect (including Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 or with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above any specified amount set forth in such election notice) for all Conversion Dates occurring subsequent to delivery of such notice. If the Company elects to irrevocably fix the Settlement Method to any permitted Combination Settlement Methodwith an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above a specified amount, except it the Company shall, after the date of such election, as the case may not change be, inform Holders converting their Notes, the Default Settlement Method during any Redemption Period Trustee and the Conversion Agent (if other than the Trustee) in writing of such Specified Dollar Amount in respect of Notes converted the relevant conversion or conversions no later than the relevant Settlement Method election deadline for such conversion or conversions as described above, or, if the Company does not timely inform the Holders, the Trustee and the Conversion Agent of the Specified Dollar Amount, such Specified Dollar Amount will be the specific amount set forth in the election notice or, if no specific amount was set forth in the election notice, such Specified Dollar Amount will be deemed to be $1,000 per $1,000 principal amount of Notes. Notwithstanding the foregoing, no such irrevocable election will affect any Settlement Method theretofore elected (or deemed to be elected) with respect to any Note pursuant to the provisions described in this Section 14.02. If the Company irrevocably fixes the Settlement Method pursuant to this Section 14.02(a)(ii), the Company shall either post the fixed Settlement Method on its website or disclose the same in a Conversion Date occurring during such Redemption PeriodCurrent Report on Form 8-K (or any successor form) or on or after December 1, 2023 (in respect of Notes converted that is filed with a Conversion Date that occurs on or after December 1, 2023)the Commission.
(iviii) The cash, shares of Common Shares Stock or combination of cash and shares of Common Shares Stock payable or deliverable by the Company in respect of any conversion of Notes (the “Settlement Amount”) shall be computed by the Company as follows follows:
(A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted:
(A) if Physical Settlement applies to such conversion, converted a number of shares of Common Shares Stock equal to the Conversion Rate in effect on the Conversion Date for such (plus cash in lieu of any fractional share of Common Stock issuable upon conversion);
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement applies to such conversionSettlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 25 40 consecutive VWAP Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement applies to such conversionSettlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, converted a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 25 40 consecutive VWAP Trading Days during the related Observation Period.
Period (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of plus cash payable in lieu of delivering any fractional share of Common Share, if any, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the same. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 13.02(eStock issuable upon conversion), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the Applicable Procedures and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any Common Shares to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 13 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 14.02. If more than one Note shall be surrendered for conversion at any one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted therebyhereby) so surrendered.
(civ) A Note The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 13.03(b) and Section 13.07(a), determined by the Company shall pay promptly following the last VWAP Trading Day of the related Observation Period. Promptly after such determination of the Daily Settlement Amounts or deliverthe Daily Conversion Values, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Dateand, if Physical Settlement appliesapplicable, or on the second Business Day immediately following the last Trading Day amount of the Observation Period, if cash payable in lieu of any other Settlement Method applies. If any fractional share of Common Shares are due to a converting HolderStock, the Company shall issue notify the Trustee and deliver (or otherwise cause to be delivered) to the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or to such Holderthe Daily Conversion Values, or such Holder’s nominee or nomineesas the case may be, and, if applicable, the full number amount of cash payable in lieu of fractional shares of Common Shares to which Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such Holder shall be entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligationdetermination.
(di) In case any To convert a beneficial interest in a Global Note shall be surrendered for partial conversion(which conversion is irrevocable), the Company shall execute and holder of such beneficial interest must:
(A) comply with the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount Applicable Procedures;
(B) if required, pay funds equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any all documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed owed as set forth in connection therewith Section 14.02(d) and Section 14.02(e); and
(C) if required, pay funds equal to any Special Interest payable on the next Special Interest Payment Date as set forth in Section 14.02(g); and
(ii) To convert a result of the name of Certificated Note, the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.must:
(eA) If complete, sign (by manual, electronic or facsimile signature) and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a Holder submits facsimile or delivery by electronic mail of a pdf thereof) (a “Notice of Conversion”) and such Note for conversionto the Conversion Agent;
(B) if required, the Company shall furnish appropriate endorsements and transfer documents;
(C) if required, pay any funds equal to all documentary, stamp or similar issue or transfer tax due owed as set forth in Section 14.02(d) and Section 14.02(e); and
(D) if required, pay funds equal to any Special Interest payable on the issue next Special Interest Payment Date as set forth in Section 14.02(g). The Trustee (and if different, the Conversion Agent) shall notify the Company of any Common Shares upon conversion pursuant to this Article 14 on the Conversion Date for such conversion or, if notice on such date is not feasible given the nature of the conversion, unless the tax is due because the promptly thereafter. If a Holder requests has already delivered a Fundamental Change Repurchase Notice with respect to a Note, such shares to be issued in a name other than the Holder’s nameHolder may not surrender such Note for conversion until such Holder has validly withdrawn such Fundamental Change Repurchase Notice (or, in which the case of a Global Note, has complied with the Holder shall pay that tax. The Conversion Agent may refuse Applicable Procedures with respect to deliver the certificates representing the Common Shares being issued in such a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder withdrawal) in accordance with the immediately preceding sentence.
(f) Except as provided in terms of Section 13.04, no adjustment shall be made for dividends on any Common Shares issued upon the conversion of any Note as provided in this Article 13.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby15.03. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, If a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below in this Section 13.02(h), and the Company will not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and Common Shares, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided, however, that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified already delivered a Fundamental Change Repurchase Date Notice, such Holder’s right to withdraw such notice and convert the Notes that is after a Regular Record Date and on or prior are subject to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists repurchase will terminate at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, shall receive the full interest payment due on Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date.
(i) The Person in whose name any Common Shares shall be issuable upon conversion shall be treated as a shareholder of record of such shares as of the close of business on the relevant Conversion Date (if Physical Settlement applies to such conversion) or as of the close of business on the last Trading Business Day of immediately preceding the relevant Observation Period (if Combination Settlement applies to such conversion), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversionFundamental Change Repurchase Date.
(j) The Company shall not issue any fractional Common Share upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Common Share issuable upon conversion based on the Daily VWAP for the relevant Conversion Date, in the case of Physical Settlement, or based on the Daily VWAP for the last Trading Day of the relevant Observation Period, in the case of Combination Settlement. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be issuable upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 13.02, Section 13.03(b) and Section 13.07(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying pay or deliveringdeliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 13.02 (“Physical Settlement”), ) or a combination of cash and shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 13.02 (“Combination Settlement”), at its election, as set forth in this Section 13.02, subject to the requirements of Section 13.07.
(i) All conversions for which the relevant Conversion Date occurs during a Redemption Period shall be settled using the same Settlement Method, and all conversions for which the relevant Conversion Date occurs on or after December 1March 15, 2023 2024 shall be settled using the same Settlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs during a Redemption Period and any conversions for which the relevant Conversion Date occurs on or after December 1March 15, 20232024, the Company shall use the same Settlement Method for all conversions with occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates.
(iii) If, in respect of any Conversion Date (or any conversion for which the relevant Conversion Date occurs during a Redemption Period on or after December 1period described in the third immediately succeeding set of parentheses, 2023as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company shall deliver such Settlement Notice to converting Holders Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions of any Notes for which the relevant Conversion Date occurs (A) during a Redemption Period, in the applicable Redemption Notice or (B) on or after December 1March 15, 20232024, no later than the close of business on the Business Scheduled Trading Day immediately preceding December 1March 15, 20232024). If the Company does not elect a Settlement Method with respect to any conversion prior to the deadline set forth in the immediately preceding sentence, then the Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to such conversion or during such period and the Company shall be deemed to have elected the Default Combination Settlement Method in respect of such conversionits Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice, if provided, Notice shall specify the relevant Settlement Method and, and in the case of an election of Combination Settlement, the applicable relevant Settlement Notice shall indicate the Specified Dollar AmountAmount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. For the avoidance of doubt, the Company’s failure to so select a Settlement Method or Specified Dollar Amount when so permitted shall not constitute a Default or Event of Default under this Indenture or the Notes. By notice to the Holders, the Company may change the Default Settlement Method to any permitted Settlement Method, except it may not change the Default Settlement Method during any Redemption Period (in respect of Notes converted with a Conversion Date occurring during such Redemption Period) or on or after December 1, 2023 (in respect of Notes converted with a Conversion Date that occurs on or after December 1, 2023).
(iv) The cash, shares of Common Shares Stock or combination of cash and shares of Common Shares Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows follows:
(A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted:
(A) if Physical Settlement applies to such conversion, converted a number of shares of Common Shares Stock equal to the Conversion Rate in effect on the Conversion Date for such conversionDate;
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement applies to such conversionSettlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 25 30 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement applies to such conversionSettlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 25 30 consecutive Trading Days during the related Observation Period.
(v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Share, if anyStock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the sameDaily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(vi) At any time prior to March 15, 2024, the Company may irrevocably elect Cash Settlement to satisfy its Conversion Obligation in respect of Notes to be converted after the date of such election, or irrevocably elect Combination Settlement and a Specified Dollar Amount (which amount shall be at least $1,000 per $1,000 principal amount of Notes) to satisfy its Conversion Obligation in respect of Notes to be converted after the date of such election. Upon making any election pursuant to this Section 13.02(a)(vi), the Company shall promptly (A) use its reasonable efforts to post information relating to such election on its website or otherwise publicly disclose such information, and (B) give written notice of such election to the Holders of the Notes.
(b) Subject to Section 13.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the Applicable Procedures procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Shares Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h). The Trustee (and and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 13 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered for conversion by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 14.0214.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 13.03(b) and Section 13.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement appliesSettlement, or on the second Business Day immediately following the last Trading Day of the relevant Observation Period, if any other in the case of Cash Settlement Method appliesor Combination Settlement. If any shares of Common Shares Stock are due to a converting HolderHolders, the Company shall issue and deliver (or otherwise cause to be delivered) issued, and deliver to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common Shares Stock to which such Holder shall be entitled, in book-entry format through the Depositary, entitled in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Shares Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall be required to pay that tax. The Conversion Agent may refuse to deliver or refuse to instruct the stock transfer agent to deliver the certificates representing the shares of Common Shares Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 13.04, no adjustment shall be made for dividends on any shares of Common Shares Stock issued upon the conversion of any Note as provided in this Article 13.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below in this Section 13.02(h), and the Company will not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notesbelow. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not includingexcluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not includingexcluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelledcanceled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common SharesStock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided, however, provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (43) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, Date or any Fundamental Change Repurchase Date as described in the immediately preceding sentence shall receive the full interest payment due on the Maturity Date in cash or other applicable Interest Payment Date regardless of whether their Notes have been converted following such Regular Record Date.
(i) The Person in whose name the certificate for any shares of Common Shares shall be issuable Stock delivered upon conversion is registered shall be treated as a shareholder stockholder of record of such shares as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement applies to such conversionSettlement) or as of the close of business on the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement applies to such conversionSettlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional share of Common Share Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Share Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date, Date (in the case of Physical Settlement, ) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period, Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be issuable issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Sources: Indenture (Twitter, Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 13.0214.02, Section 13.03(b14.03(b) and Section 13.07(a14.07(a), upon conversion of any Note, the Company shall satisfy shall, at its Conversion Obligation by paying election, pay or deliveringdeliver, as the case may be, to the converting Holder, in respect full satisfaction of each $1,000 principal amount of Notes being convertedits Conversion Obligation, cash (“Cash Settlement”), shares of the Common Shares, together, if applicable, with cash in lieu of delivering any fractional Common Share in accordance with Section 13.02(j) Stock (“Physical Settlement”), ) or a combination of cash and shares of the Common Shares, together, if applicable, with cash in lieu of delivering any fractional Common Share in accordance with Section 13.02(j) Stock (“Combination Settlement”), at its election, as set forth in this Section 13.02, subject to the requirements of Section 13.0714.02.
(i) All conversions for which the relevant Conversion Date occurs during a Redemption Period on or after January 1, 2020 shall be settled using the same Settlement Method, and Method (including the same relative proportion of cash and/or shares of the Common Stock) as all other conversions for which the relevant Conversion Date occurs occurring on or after December January 1, 2023 shall be settled using the same Settlement Method.
(ii) 2020. Except for any conversions for which the relevant Conversion Date occurs during a Redemption Period and any conversions for which the relevant Conversion Date occurs on or after December January 1, 20232020, the Company shall use the same Settlement Method (including the same relative proportion of cash and/or shares of the Common Stock) for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates.
(iiiii) If, in respect of any Conversion Date (or any conversion for which the relevant Conversion Date occurs during a Redemption Period on or after December 1, 2023), If the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be)Method, the Company shall deliver notice to Holders through the Conversion Agent of such Settlement Notice to converting Holders Method the Company has selected no later than the close of business on the Trading Day immediately following the relevant related Conversion Date (or, or in the case of any conversions of any Notes for which the relevant Conversion Date occurs (A) during a Redemption Period, in the applicable Redemption Notice or (B) on or after December January 1, 20232020, no later than the close of business on the Business Day immediately preceding December January 1, 20232020). If the Company does not timely elect a Settlement Method Method, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to any conversion prior to the deadline set forth in the immediately preceding sentence, then that Conversion Date and the Company shall be deemed to have elected the Default Settlement Method in respect of such conversion. Such Settlement Notice, if provided, shall specify the relevant Settlement Method and, in the case of Combination Settlement, the applicable Specified Dollar Amount. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes to be converted in such Settlement NoticeObligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. If the Company has timely elected Combination Settlement in respect of any conversion but does not timely notify the Conversion Agent of the Specified Dollar Amount per $1,000 principal amount of Notes, or the Company is deemed to have elected Combination Settlement, the Specified Dollar Amount shall be deemed to be $1,000. For the avoidance of doubt, the Company’s failure to so select a Settlement Method or Specified Dollar Amount when so permitted shall not constitute a Default or Event of Default under this Indenture or the Notes. By notice to the Holders, the Company may change the Default Settlement Method to any permitted Settlement Method, except it may not change the Default Settlement Method during any Redemption Period (in respect of Notes converted with a Conversion Date occurring during such Redemption Period) or on or after December 1, 2023 (in respect of Notes converted with a Conversion Date that occurs on or after December 1, 2023).
(iviii) The cash, shares of Common Shares Stock or combination of cash and shares of Common Shares Stock payable or deliverable by the Company in respect of any conversion of Notes (the “Settlement Amount”) shall be computed by the Company as follows follows:
(A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted:
(A) if Physical Settlement applies to such conversion, converted a number of shares of Common Shares Stock equal to the Conversion Rate in effect on the Conversion Date for such (plus cash in lieu of any fractional share of Common Stock issuable upon conversion);
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement applies to such conversionSettlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 25 20 consecutive VWAP Trading Days during the related relevant Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement applies to such conversionSettlement, the Company shall pay or and deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, converted a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 25 20 consecutive VWAP Trading Days during the related Observation Period.
Period (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of plus cash payable in lieu of delivering any fractional share of Common Share, if any, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the same. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 13.02(eStock issuable upon conversion), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the Applicable Procedures and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any Common Shares to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 13 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 14.02. If more than one Note shall be surrendered for conversion at any one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted therebyhereby) so surrendered.
(iv) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last VWAP Trading Day of the related Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and, if applicable, the amount of cash payable in lieu of any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and, if applicable, the amount of cash payable in lieu of fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(i) To convert a beneficial interest in a Global Note (which conversion is irrevocable), the holder of such beneficial interest must:
(A) comply with the Applicable Procedures;
(B) if required, pay funds equal to all documentary, stamp or similar issue or transfer tax owed as set forth in Section 14.02(d) and Section 14.02(e); and
(C) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(g); and
(ii) To convert a Certificated Note, the Holder must:
(A) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile thereof) (a “Notice of Conversion”) and such Note to the Conversion Agent;
(B) if required, furnish appropriate endorsements and transfer documents;
(C) if required, pay funds equal to all documentary, stamp or similar issue or transfer tax owed as set forth in Section 14.02(d) and Section 14.02(e); and
(D) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(g). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. If a Holder has already delivered a Fundamental Change Repurchase Notice with respect to a Note, such Holder may not surrender such Note for conversion until such Holder has validly withdrawn such Fundamental Change Repurchase Notice (or, in the case of a Global Note, has complied with the Applicable Procedures with respect to such a withdrawal) in accordance with the terms of Section 15.03. If a Holder has already delivered a Fundamental Change Repurchase Notice, such Holder’s right to withdraw such notice and convert the Notes that are subject to repurchase will terminate at the close of business on the Business Day immediately preceding the relevant Fundamental Change Repurchase Date.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (bSection 14.02(b) above. Except as set forth in Subject to the provisions of Section 13.03(b14.03(b) and Section 13.07(a14.07(a), the Company shall pay or deliver, as the case may be, the consideration Settlement Amount due in respect of the Conversion Obligation on on:
(i) the second third Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement applies, or on Settlement; or
(ii) the second third Business Day immediately following the last VWAP Trading Day of the relevant Observation Period, if any other the Company elects Cash Settlement Method appliesor if the Company elects or is deemed to elect Combination Settlement. If any shares of Common Shares Stock are due to a converting HolderHolders, the Company shall issue and deliver (or otherwise cause to be delivered) to the Conversion Agent or issued, and deliver to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary, as the case may be, for the full number of shares of Common Shares Stock to which such Holder shall be entitled, in book-entry format through the Depositary, entitled in satisfaction of the Company’s Conversion Obligation.
(d) In case any Certificated Note shall be surrendered for partial conversion, in $1,000 principal amount or an integral multiple thereof, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue issuance of any shares of Common Shares Stock upon conversionconversion of such Note, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Shares Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 13.04, no adjustment shall be made for dividends on any Common Shares issued upon the conversion of any Note as provided in this Article 13.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian custodian of the Global Note at the direction of the Trustee, shall make a notation on such Global Note in the books and records of the Trustee and Depositary as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(hg) Upon conversionconversion of a Note, a the converting Holder shall not receive any separate cash payment for representing accrued and unpaid interest, if any, except as set forth below in this Section 13.02(h), and the Company will not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notesparagraph below. The Company’s settlement payment or delivery, as the case may be, of the full Conversion Obligation Settlement Amount upon conversion of any Note shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelledcanceled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common SharesStock, accrued and unpaid interest will shall be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoingimmediately preceding paragraph, if Notes are converted after the close of business on a Regular Record Date for the payment of interest, but prior to the open of business on the immediately following Interest Payment Date, Holders of such Notes as of after the close of business on such Regular Record Date will shall receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so convertedconverted on the corresponding Interest Payment Date (regardless of whether the converting Holder was the Holder of record on the corresponding Regular Record Date); provided, however, provided that no such payment shall need be required made:
(1i) if the Notes are surrendered for conversions conversion following the Regular Record Date immediately preceding the Maturity Date; ;
(2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3ii) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or or
(4iii) to the extent of any Defaulted Amountsoverdue interest, if any Defaulted Amounts overdue interest exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, Date shall receive and retain the full interest payment due on the Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date.
(ih) The Person in whose name any shares of Common Shares shall be issuable Stock delivered upon conversion is registered shall be treated as a shareholder become the holder of record of such shares as of the close of business on (i) the relevant Conversion Date (if the Company elects Physical Settlement applies to such conversionor (ii) or as of the close of business on the last VWAP Trading Day of the relevant Observation Period (if the Company elects or is deemed to elect Combination Settlement applies to such conversion), as the case may beSettlement. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion; provided that (a) the converting Holder shall have the right to receive the Settlement Amount due upon conversion and (b) in the case of a conversion between a Regular Record Date and the corresponding Interest Payment Date, the Holder of record as of the close of business on such Regular Record Date shall have the right to receive the interest payable on such Interest Payment Date, in accordance with Section 14.02(g).
(ji) The Company shall not issue any fractional share of Common Share Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Share Stock issuable upon conversion in an amount based on (i) the Daily VWAP for on the relevant Conversion Date, in Date if the case of Company elects Physical Settlement, Settlement or based on (ii) the Daily VWAP for on the last VWAP Trading Day of the relevant Observation Period, in Period if the case of Company elects or is deemed to elect Combination Settlement. For each Note surrendered for conversion, if the Company has elected (or is deemed to have electedelect) Combination Settlement, the full number of shares that shall be issuable issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and and, if applicable, any fractional shares share remaining after such computation shall be paid in cash.
Appears in 1 contract
Sources: Indenture (Whiting Petroleum Corp)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 13.0214.02, Section 13.03(b14.03(b) and Section 13.07(a14.07(a), upon conversion of any Note, the Company shall satisfy shall, at its Conversion Obligation by paying election, pay or deliveringdeliver, as the case may be, to the converting Holder, in respect full satisfaction of each $1,000 principal amount of Notes being convertedits Conversion Obligation, cash (“Cash Settlement”), shares of the Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with Section 13.02(j14.02(i) (“Physical Settlement”), or a combination of cash and shares of the Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with Section 13.02(j14.02(i) (“Combination Settlement”), at its election, as set forth in this Section 13.02, subject to the requirements of Section 13.0714.02.
(i) All conversions for which the relevant Conversion Date occurs during a Redemption Period shall be settled using the same Settlement Method, and all conversions of Notes (a) for which the relevant Conversion Date occurs on or after December 115, 2023 2025, (b) occurring after a Redemption Notice Date and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date and (iii) following the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(ii), in each case, shall be settled using the same Settlement Method.
Method (ii) including the same relative proportion of cash and/or shares of Common Stock). Except for any conversions for which the relevant Conversion Date occurs during a Redemption Period and (1) any conversions for which the relevant Conversion Date occurs on or after December 115, 20232025, (2) any conversions of Notes called for Redemption pursuant to Section 16.01 occurring after a Redemption Notice Date and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date, and (3) any conversion following the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(ii), in each case, the Company shall use the same Settlement Method (including the same relative proportion of cash and/or shares of Common Stock in the case of Combination Settlement) for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates.
(iiiii) IfUnless the Company has irrevocably fixed the Settlement Method as described in this Section 14.02(ii), the Company shall send or cause to be sent written notice of the Settlement Method determined in respect accordance with this Section 14.02(a) to Holders, the Trustee and the Conversion Agent (if other than the Trustee) (a) no later than 1:00 p.m., New York City time, on the Trading Day immediately following the related Conversion Date, (b) in the case of any Conversion Date (or any conversion conversions for which the relevant Conversion Date occurs during a Redemption Period on or after December 115, 2023)2025, the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company shall deliver such Settlement Notice to converting Holders no later than December 15, 2025 or (c) in the case of any conversion of Notes called for Redemption pursuant to Section 16.01 occurring on or after a Redemption Notice Date and prior to the close of business on the second Scheduled Trading Day immediately following preceding the relevant Conversion Date (orrelated Redemption Date, in the case such Notice of any conversions of any Notes for which the relevant Conversion Date occurs (A) during a Redemption Period, in the applicable Redemption Notice or (B) on or after December 1, 2023, no later than the close of business on the Business Day immediately preceding December 1, 2023Redemption. If the Company does not timely elect a Settlement Method with respect to any conversion prior to the deadline set forth in the immediately preceding sentenceMethod, then the Company shall be deemed to have elected the “Default Settlement Method in respect of such conversion. Such Settlement Notice, if provided, shall specify the relevant Settlement Method and, in the case of Combination Settlement, the applicable Specified Dollar AmountMethod” (as defined below). If the Company delivers a Settlement Notice electing elects Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount timely notify the Conversion Agent of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes amount, such Specified Dollar Amount shall be deemed to be $1,000. The “Default Settlement Method” will initially be Combination Settlement with a Specified Dollar Amount of $1,000. However, the Company may, from time to time, change the Default Settlement Method by sending written notice of the new Default Settlement Method to the Holders, the Trustee and the Conversion Agent (if other than the Trustee). In addition, the Company may, by sending notice to the Holders, irrevocably fix the Settlement Method to any Settlement Method that the Company is then permitted to elect that will apply to all conversions with a Conversion Date that is after the date of such notice. Notwithstanding the foregoing, no such change in the Default Settlement Method or irrevocable election will affect any settlement method theretofore elected (or deemed to be elected) with respect to any Note pursuant to this Section 14.02(a). Concurrently with providing notice to all Holders of a change in the Default Settlement Method or an election to irrevocably fix the Settlement Method, the Company shall promptly issue a Current Report on Form 8-K or press release announcing such change to the Default Settlement Method or election to irrevocably fix the Settlement Method, as the case may be. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the Company’s failure need to so select a Settlement Method or Specified Dollar Amount when so permitted shall not constitute a Default or Event of Default under amend this Indenture or the Notes, including pursuant Article 10. By notice to the HoldersHowever, the Company may change the Default Settlement Method nonetheless choose to any permitted Settlement Method, except it may not change the Default Settlement Method during any Redemption Period (in respect of Notes converted with a Conversion Date occurring during execute such Redemption Period) or on or after December 1, 2023 (in respect of Notes converted with a Conversion Date that occurs on or after December 1, 2023)an amendment at its option.
(iviii) The cash, shares of Common Shares Stock or combination of cash and shares of Common Shares Stock payable or deliverable by the Company in respect of any conversion of Notes (the “Settlement Amount”) shall be computed by the Company as follows follows:
(a) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted:
(A) if Physical Settlement applies to such conversion, converted a number of shares of Common Shares Stock equal to the Conversion Rate in effect on the Conversion Date for such (plus cash in lieu of any fractional share of Common Stock issuable upon conversion);
(Bb) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement applies to such conversionSettlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 25 40 consecutive VWAP Trading Days during the related Observation Period; and
(Cc) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement applies to such conversionSettlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, converted a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 25 40 consecutive VWAP Trading Days during the related Observation Period.
Period (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of plus cash payable in lieu of delivering any fractional share of Common Share, if any, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the same. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 13.02(eStock issuable upon conversion), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the Applicable Procedures and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any Common Shares to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 13 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 14.02. If more than one Note shall be surrendered for conversion at any one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted therebyhereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 13.03(b) and Section 13.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if Physical Settlement applies, or on the second Business Day immediately following the last Trading Day of the Observation Period, if any other Settlement Method applies. If any Common Shares are due to a converting Holder, the Company shall issue and deliver (or otherwise cause to be delivered) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of Common Shares to which such Holder shall be entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any Common Shares upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the Common Shares being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 13.04, no adjustment shall be made for dividends on any Common Shares issued upon the conversion of any Note as provided in this Article 13.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below in this Section 13.02(h), and the Company will not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and Common Shares, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided, however, that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, shall receive the full interest payment due on Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date.
(i) The Person in whose name any Common Shares shall be issuable upon conversion shall be treated as a shareholder of record of such shares as of the close of business on the relevant Conversion Date (if Physical Settlement applies to such conversion) or as of the close of business on the last Trading Day of the relevant Observation Period (if Combination Settlement applies to such conversion), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional Common Share upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Common Share issuable upon conversion based on the Daily VWAP for the relevant Conversion Date, in the case of Physical Settlement, or based on the Daily VWAP for the last Trading Day of the relevant Observation Period, in the case of Combination Settlement. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be issuable upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Sources: Indenture (Cable One, Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 13.02, Section 13.03(b13.04(b) and Section 13.07(a13.08(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying pay or deliveringdeliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 13.02 (“Physical Settlement”), ) or a combination of cash and shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 13.02 (“Combination Settlement”), at its election, as set forth in this Section 13.02, subject to the requirements of Section 13.07.
(i) All conversions for which the relevant Conversion Date occurs on or after November 15, 2034 and all conversions for which the relevant Conversion Date occurs during a Redemption Period shall be settled using the same Settlement Method, and all conversions for which the relevant Conversion Date occurs on or after December 1, 2023 shall be settled using the same Settlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs on or after November 15, 2034 or during a Redemption Period and any conversions for which the relevant Conversion Date occurs on or after December 1, 2023Period, the Company shall use the same Settlement Method for all conversions with occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with that occur on different Conversion DatesTrading Days.
(iii) If, in respect of any Conversion Date (or any conversion for which the relevant Conversion Date occurs conversions occurring on or after November 15, 2034 or during a Redemption Period on or after December 1Period, 2023as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company Company, through the Conversion Agent and the Trustee, shall deliver such Settlement Notice to converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions of any Notes for which the relevant Conversion Date conversion date occurs (A) during a Redemption Period, in the applicable Redemption Notice or (B1) on or after December 1November 15, 20232034, no later than the close of business on the Business Day immediately preceding December 1November 15, 20232034 or (2) during a Redemption Period, the related Notice of Redemption). If the Company does not elect a Settlement Method with respect to any conversion prior to the deadline set forth in the immediately preceding sentence, then the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected the Default Combination Settlement Method in respect of such conversionits Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice, if provided, Notice shall specify the relevant Settlement Method and, and in the case of an election of Combination Settlement, the applicable relevant Settlement Notice shall indicate the Specified Dollar AmountAmount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. For the avoidance of doubt, the Company’s failure to so select a Settlement Method or Specified Dollar Amount when so permitted shall not constitute a Default or Event of Default under this Indenture or the Notes. By notice to the Holders, the Company may change the Default Settlement Method to any permitted Settlement Method, except it may not change the Default Settlement Method during any Redemption Period (in respect of Notes converted with a Conversion Date occurring during such Redemption Period) or on or after December 1, 2023 (in respect of Notes converted with a Conversion Date that occurs on or after December 1, 2023).
(iv) The cash, shares of Common Shares Stock or combination of cash and shares of Common Shares Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows follows:
(A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted:
(A) if Physical Settlement applies to such conversion, converted a number of shares of Common Shares Stock equal to the Conversion Rate in effect on the Conversion Date for such conversionDate;
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement applies to such conversionSettlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 25 50 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement applies to such conversionSettlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 25 50 consecutive Trading Days during the related Observation Period.
(v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Share, if anyStock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) in writing of the sameDaily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 13.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the Applicable Procedures procedures of the Depositary in effect at that time (any instruction to convert transmitted to the Depositary shall be irrevocable) and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Shares Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and documents, (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h). The Trustee (and and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 13 XIII on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered for conversion by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice or Specified Repurchase Date Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice or Specified Repurchase Date Notice in accordance with Section 14.0214.04. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 13.03(b13.04(b) and Section 13.07(a13.08(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second third Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement applies, or on the second third Business Day immediately following the last Trading Day of the relevant Observation Period, if in the case of any other Settlement Method appliesMethod. If any shares of Common Shares Stock are due to a converting HolderHolders, the Company shall issue and deliver (or otherwise cause to be delivered) issued, and deliver to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common Shares Stock to which such Holder shall be entitled, in book-entry format through the Depositary, entitled in satisfaction of the Company’s Conversion Obligation.
(d) In case any Physical Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or the Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Shares Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Shares Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 13.0413.05, no adjustment shall be made for dividends on any shares of Common Shares Stock issued upon the conversion of any Note as provided in this Article 13.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below in this Section 13.02(h), and the Company will not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notesbelow. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common SharesStock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided, however, provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately second business day following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately second business day following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, Date and any Redemption Date or Fundamental Change Repurchase Date shall receive the full interest payment due on the Maturity Date in cash or other corresponding Interest Payment Date regardless of whether their Notes have been converted following such Regular Record Date.
(i) The Person in whose name the certificate for any shares of Common Shares shall be issuable Stock delivered upon conversion is registered shall be treated as a shareholder stockholder of record of such shares as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement applies to such conversionSettlement) or as of the close of business on the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement applies to such conversionSettlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional share of Common Share Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Share Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date, Date (in the case of Physical Settlement, ) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period, Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be issuable issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period Period, and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 13.0214.02, Section 13.03(b14.03(b) and Section 13.07(a14.07(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying or delivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), Common Shares, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Shares in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Physical Settlement”), ) or a combination of cash and Common Shares, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Shares in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Combination Settlement”), at its election, as set forth in this Section 13.02, subject to the requirements of Section 13.0714.02.
(i) All conversions (A) for which the relevant Conversion Date occurs on or after June 15, 2031, (B) for which the relevant Conversion Date occurs during a Redemption Period shall be settled using and (C) following the same irrevocable election of a Settlement Method, and all conversions for which the relevant Conversion Date occurs on or after December 1in each case, 2023 shall be settled using the same Settlement Method.
(ii) Except for any conversions (A) for which the relevant Conversion Date occurs during after the Company’s issuance of a Notice of Redemption Period and any conversions with respect to the Notes but prior to the related Redemption Date, (B) for which the relevant Conversion Date occurs on or after December 1June 15, 20232031, (C) to the extent the Company elects Physical Settlement to apply pursuant to Section 14.01(b)(ii) and (D) following the Company’s irrevocable election of a Settlement Method, in each case, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates.
(iii) IfSubject to the Company’s irrevocable election of a Settlement Method, if, in respect of any Conversion Date (or any conversion conversions for which the relevant Conversion Date occurs during a Redemption Period Period, or for which the relevant Conversion Date occurs on or after December 1June 15, 20232031), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company Company, through the Trustee, shall deliver such Settlement Notice in writing to converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions of any Notes for which the relevant Conversion Date occurs (Ax) during a Redemption Period, in the applicable Redemption such Notice or of Redemption, (By) on or after December 1June 15, 20232031, no later than June 15, 2031 or (z) for which the close of business on the Business Day immediately preceding December 1, 2023Company has irrevocably elected Physical Settlement to apply pursuant to Section 14.01(b)(ii)). If the Company does not elect a Settlement Method with respect to any conversion a Conversion Date prior to the deadline set forth in the immediately preceding sentence, then the Company shall no longer have the right to elect Cash Settlement or Combination Settlement with respect to such Conversion Date, and the Company shall be deemed to have elected the Default Physical Settlement Method in respect of such conversionits Conversion Obligation. Such Settlement Notice, if provided, Notice shall specify the relevant Settlement Method and, and in the case of an election of Combination Settlement, the applicable relevant Settlement Notice shall indicate the Specified Dollar Amount. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount, the Specified Dollar Amount shall be deemed to be $1,000.
(iv) By notice to Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee), the Company may irrevocably elect a Settlement Method or specified dollar amount (or a minimum specified dollar amount), or eliminate its right to elect a Settlement Method; provided, however, that the Company shall not irrevocably elect to have either Cash Settlement or Combination Settlement apply to any Conversion Dates occurring on or prior to the date that is five years from the last date of original issuance of Notes. If the Company irrevocably elects Combination Settlement with an ability to continue to set the specified dollar amount per $1,000 principal amount of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. For the avoidance of doubt, the Company’s failure to so select at or above a Settlement Method or Specified Dollar Amount when so permitted shall not constitute a Default or Event of Default under this Indenture or the Notes. By notice to the Holdersspecific amount, the Company may change shall, after the Default date of such election, either post the fixed Settlement Method to on its website or disclose the same in a Material Change Report on Form 6-K (or any permitted Settlement Method, except it may not change successor form) that is filed with the Default Settlement Method during any Redemption Period (in respect of Notes converted with a Conversion Date occurring during such Redemption Period) or on or after December 1, 2023 (in respect of Notes converted with a Conversion Date that occurs on or after December 1, 2023)Commission.
(ivv) The cash, Common Shares or combination of cash and Common Shares in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows follows:
(A) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted:
(A) if Physical Settlement applies to such conversion, converted a number of Common Shares equal to the Conversion Rate (plus cash in lieu of any fractional Common Shares issuable upon conversion) in effect on the Conversion Date for such conversionDate;
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement applies to such conversionSettlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 25 30 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement applies to such conversionSettlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 25 30 consecutive Trading Days during the related Observation PeriodPeriod (plus cash in lieu of any fractional Common Shares issuable upon conversion).
(vvi) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Share, if anyShares, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) in writing of the sameDaily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional Common Shares. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 13.02(e14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the Applicable Procedures applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h) 14.02(h), and if required, pay any transfer or similar taxes, if any, and (ii) in the case of a Physical Definitive Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any Common Shares to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and documents, (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h)14.02(h) and (5) if required, pay all transfer or similar taxes, if any. The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 13 14 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Holder H▇▇▇▇▇ has also delivered a Fundamental Change Repurchase Offer Acceptance Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Offer Acceptance Notice in accordance with Section 14.0215.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be be, to the extent permitted by the Depositary’s applicable procedures, computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 13.03(b14.03(b) and Section 13.07(a14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement (provided that, with respect to any conversion following the Record Date immediately preceding the Maturity Date where Physical Settlement applies, the Company shall settle any such conversion on the Maturity Date or, if the Maturity Date is not a Business Day, the next succeeding Business Day, and the Conversion Date will be deemed to the second Business Day immediately before such date), or on the second Business Day immediately following the last Trading Day of the Observation Period, if in the case of any other Settlement Method appliesMethod. If any Common Shares are due to a converting Holder, the Company shall issue or cause to be issued, and deliver (or otherwise cause to be deliveredif applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of Common Shares to which such Holder shall be entitled, in book-entry format through the Depositary, in the case of Global Notes, or in certificated form, in the case of Definitive Notes, in each case, in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue issuance of any Common Shares upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the Common Shares being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder H▇▇▇▇▇ in accordance with the immediately preceding sentence.
(f) Except as provided in Section 13.0414.04, no adjustment shall be made for dividends on any Common Shares issued upon the conversion of any Note as provided in this Article 1314.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, Trustee shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below in this Section 13.02(h), and the Company will not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notesbelow. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and Common Shares, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided, however, provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, Date shall receive the full interest payment due on the Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date.
(i) The Person in whose name any the Common Shares shall be issuable upon conversion shall be treated as a shareholder of record of such shares as of the close of business on the relevant Conversion Date (if the Company elects (or is deemed to have elected) to satisfy the related Conversion Obligation by Physical Settlement applies to such conversionSettlement) or as of the close of business on the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement applies to such conversionSettlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional share of Common Share Shares upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Share Shares issuable upon conversion based on the Daily VWAP for the relevant Conversion Date, Date (in the case of Physical Settlement, ) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period, Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares Common Shares that shall be issuable issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.Amounts
Appears in 1 contract
Sources: Indenture (Denison Mines Corp.)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 13.0214.02, Section 13.03(b14.03(b) and Section 13.07(a14.07(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying or delivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Physical Settlement”), ) or a combination of cash and shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Combination Settlement”), at its election, as set forth in this Section 13.02, subject to the requirements of Section 13.0714.02.
(i) All conversions for which the relevant Conversion Date occurs during after the Company’s issuance of a Notice of Redemption Period with respect to the Notes and prior to the related Redemption Date shall be settled using the same Settlement Method, and all conversions for which the relevant Conversion Date occurs on or after December 1October 15, 2023 2024, shall be settled using the same Settlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs during after the Company’s issuance of a Notice of Redemption Period with respect to the Notes but prior to the related Redemption Date, and any conversions for which the relevant Conversion Date occurs on or after December 1October 15, 20232024, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates.
(iii) If, in respect of any Conversion Date (or any conversion conversions for which the relevant Conversion Date occurs during after the Company’s issuance of a Notice of Redemption Period with respect to the Notes and prior to the related Redemption Date, or for which the relevant Conversion Date occurs on or after December 1October 15, 20232024), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company Company, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions of any Notes for which the relevant Conversion Date occurs (Ax) during after the date of issuance of a Notice of Redemption Periodwith respect to the Notes and prior to the related Redemption Date, in the applicable such Notice of Redemption Notice or (By) on or after December 1October 15, 20232024, no later than the close of business on the Business Day immediately preceding December 1October 15, 20232024). If the Company does not elect a Settlement Method with respect to any conversion prior to the deadline set forth in the immediately preceding sentencesentence with respect to any conversion, then the Company shall be deemed to have elected the Default Settlement Method in with respect of to such conversion. Such Settlement Notice, if provided, Notice shall specify the relevant Settlement Method and, and in the case of an election of Combination Settlement, the applicable relevant Settlement Notice shall indicate the Specified Dollar AmountAmount per $1,000 principal amount of Notes. If the Company timely delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. For the avoidance of doubt, the Company’s failure to so select timely elect a Settlement Method or specify the applicable Specified Dollar Amount when so permitted shall will not constitute a Default or Event of Default under this Indenture or the Notes. By notice to the Holders, the Company may change the Default Settlement Method to any permitted Settlement Method, except it may not change the Default Settlement Method during any Redemption Period (in respect of Notes converted with a Conversion Date occurring during such Redemption Period) or on or after December 1, 2023 (in respect of Notes converted with a Conversion Date that occurs on or after December 1, 2023)Indenture.
(iv) The cash, shares of Common Shares Stock or combination of cash and shares of Common Shares Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows follows:
(A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted:
(A) if Physical Settlement applies to such conversion, converted a number of shares of Common Shares Stock equal to the Conversion Rate in effect on the Conversion Date for such conversionDate;
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement applies to such conversionSettlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 25 50 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement applies to such conversionSettlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 25 50 consecutive Trading Days during the related Observation Period.
(v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Share, if anyStock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the sameDaily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 13.02(e14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the Applicable Procedures applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”” which notice shall be irrevocable, in either case) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Shares Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 13 14 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 14.0215.03. If more than one Note shall be is surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 13.03(b14.03(b) and Section 13.07(a14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement applies(provided that, with respect to any Conversion Date following the Regular Record Date immediately preceding the Maturity Date where Physical Settlement applies to the related conversion, the Company will settle any such conversion on the Maturity Date), or on the second Business Day immediately following the last Trading Day of the Observation Period, if in the case of any other Settlement Method appliesMethod. If any shares of Common Shares Stock are due to a converting Holder, the Company shall issue or cause to be issued, and deliver (or otherwise cause to be deliveredif applicable) to the Conversion Agent or to such converting Holder, or such Holder’s nominee or nominees, the full number of shares of Common Shares Stock to which such Holder shall be entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Shares Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Shares Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 13.0414.04, no adjustment shall be made for dividends on any shares of Common Shares Stock issued upon the conversion of any Note as provided in this Article 1314.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below in this Section 13.02(h), and the Company will not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notesbelow. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common SharesStock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided, however, provided that no such payment shall be required (1) for conversions following the close of business on the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record at the close of business on the Regular Record Date immediately preceding the Maturity Date, Date shall receive the full interest payment due on the Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date.
(i) The Person in whose name any the shares of Common Shares Stock shall be issuable upon conversion shall be treated as a shareholder become the stockholder of record of such shares as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement applies to such conversionSettlement) or as of the close of business on the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement applies to such conversionSettlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional share of Common Share Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Share Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date, Date (in the case of Physical Settlement, ) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period, Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be issuable issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Sources: Indenture (Health Catalyst, Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 13.02Section 14.02, Section 13.03(bSection 14.03(b) and Section 13.07(aSection 14.08(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying or delivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), Common Class A Ordinary Shares, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional Common Share Class A Ordinary Shares in accordance with Section 13.02(jsubsection (j) of this Section 14.02 (“Physical Settlement”), ) or a combination of cash and Common Class A Ordinary Shares, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional Common Share Class A Ordinary Shares in accordance with Section 13.02(jsubsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 13.02, subject to the requirements of Section 13.07Section 14.02.
(i) All conversions of Called Notes for which the relevant Conversion Date occurs during a the related Redemption Period shall be settled using the same Settlement MethodPeriod, and all conversions for which the relevant Conversion Date occurs on or after December 1August 15, 2023 2031, shall be settled using the same Settlement Method.
(ii) Except for any conversions of Called Notes for which the relevant Conversion Date occurs during a the related Redemption Period Period, and any conversions for which the relevant Conversion Date occurs on or after December 1August 15, 20232031, and except to the extent the Company has irrevocably elected Physical Settlement pursuant to Section 14.01(b)(ii) in a notice as described in such Section or has previously made an irrevocable election with respect to all subsequent conversions of Notes pursuant to Section 14.02(a)(iii), the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates.
(iii) If, in respect of any Conversion Date (or any conversion conversions of Called Notes for which the relevant Conversion Date occurs during a the related Redemption Period Period, or any conversions for which the relevant Conversion Date occurs on or after December 1August 15, 20232031 or for which the Company has irrevocably elected Physical Settlement pursuant to Section 14.01(b)(ii) in a notice as described in such Section), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or either such period, as the case may be), the Company Company, shall deliver such Settlement Notice to converting Holders Holders, the Trustee and the Conversion Agent (if other than the Trustee) in accordance with Section 17.15, no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of (x) any conversions conversion of any Called Notes for which the relevant Conversion Date occurs (A) during a the related Redemption Period, in the applicable relevant Redemption Notice or Notice, (By) any conversions of Notes for which the relevant Conversion Date occurs on or after December 1August 15, 20232031, no later than August 15, 2031, or (z) any conversions for which the close of business on the Business Day immediately preceding December 1Company has irrevocably elected Physical Settlement pursuant to Section 14.01(b)(ii), 2023in a notice as described in such Section). If the Company does not timely elect a Settlement Method with respect to any conversion prior to the deadline set forth in the immediately preceding sentence, then the Company shall no longer have the right to elect a Settlement Method with respect to any such Conversion Date or during such period and the Company shall be deemed to have elected the Default Settlement Method in respect of such conversionits Conversion Obligation. Such Settlement Notice, if provided, Notice shall specify the relevant Settlement Method and, and in the case of an election of Combination Settlement, the applicable relevant Settlement Notice shall indicate the Specified Dollar AmountAmount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation Obligation, or the Company is deemed to have elected Combination Settlement, but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. For the avoidance of doubt, the Company’s failure to so select timely elect a Settlement Method or specify as applicable a Specified Dollar Amount when so permitted shall will not constitute a Default or Event of Default under this Indenture or the NotesIndenture. By notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company may may, from time to time, change the Default Settlement Method prior to August 15, 2031. In addition, by notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to August 15, 2031, at its option, irrevocably elect to fix the Settlement Method to any Settlement Method that the Company is then permitted to elect, including Combination Settlement Method, except it may not change with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 or with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above a specific amount set forth in such notice. If the Company changes the Default Settlement Method during any Redemption Period (or irrevocably elects to fix the Settlement Method, in respect either case, to Combination Settlement with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes converted with at or above a specific amount, the Company will, after the date of such change or election, as the case may be, inform Holders converting their Notes, the Trustee and the Conversion Date occurring during Agent (if other than the Trustee) of such Redemption Period) Specified Dollar Amount no later than the relevant deadline for election of a Settlement Method as described in the immediately preceding paragraph, or, if the Company does not timely notify Holders, such Specified Dollar Amount will be the specific amount set forth in the Settlement Notice or, if no specific amount was set forth in the Settlement Notice, such Specified Dollar Amount will be $1,000 per $1,000 principal amount of Notes. A change in the Default Settlement Method or on or after December 1, 2023 (in respect an irrevocable election will apply to all conversions of Notes converted on Conversion Dates occurring subsequent to delivery of such Settlement Notice; provided, however, that no such change or election will affect any Settlement Method theretofore elected (or deemed to be elected) with respect to any Note. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to the provisions described in Section 10.01(i). However, the Company may nonetheless choose to execute such an amendment at its option. If the Company changes the Default Settlement Method or irrevocably fixes the Settlement Method pursuant to the provisions described in the preceding paragraph, then, concurrently with providing a Settlement Notice to Holders of Notes, the Trustee and the Conversion Date Agent (if other than the Trustee) of such change or election, the Company will post notice of the Default Settlement Method on its website or otherwise disclose such information in a Current Report on Form 6-K or 8-K (or any successor form) that occurs on or after December 1, 2023)is filed with the Commission.
(iv) The cash, Common Class A Ordinary Shares or combination of cash and Common Class A Ordinary Shares payable or deliverable by the Company in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows follows:
(A) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted:
(A) if Physical Settlement applies to such conversion, converted a number of Common Class A Ordinary Shares equal to the Conversion Rate in effect immediately after the close of business on the Conversion Date for such conversionDate;
(B) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement applies to such conversionSettlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 25 forty (40) consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement applies to such conversionSettlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 25 forty (40) consecutive Trading Days during the related Observation Period.
(vb) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional Common Share, if anyClass A Ordinary Shares, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the sameDaily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional Class A Ordinary Shares. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility or liability for any such determination.
(bc) Subject to Section 13.02(eSection 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such a Holder shall (i) in the case of a Global Note, comply with the Applicable Procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled entitled, and if required, pay all transfer or similar taxes, if any, as set forth in Section 13.02(hSection 14.02(h) and (ii) in the case of a Physical Note Note, the Holder thereof shall (1) complete, manually sign and deliver an irrevocable notice (or a facsimile, PDF or other electronic transmission thereof) to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any Common Class A Ordinary Shares to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(hSection 14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 13 Article 14 on the Conversion Date for such conversion. No Holder may surrender Notes may be surrendered for conversion by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice or a Specified Repurchase Date Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice or Specified Repurchase Date Repurchase Notice in accordance with Section 14.0215.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) . A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b(b) above. Except as set forth in Section 13.03(bSection 14.03(b) and Section 13.07(aSection 14.08(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation Obligation, on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement appliesSettlement, or on the second Business Day immediately following the last Trading Day of the relevant Observation Period, if in the case of any other Settlement Method appliesMethod; provided, that with respect to any Conversion Date occurring during a Redemption Period, the Company will settle any such conversion for which Physical Settlement is applicable on the relevant Redemption Date; provided, further, that notwithstanding the foregoing, with respect to any Conversion Date occurring after the regular Record Date immediately preceding the Maturity Date, the Company will settle any such conversion for which Physical Settlement is applicable on the Maturity Date. If any Common Class A Ordinary Shares are due to a converting Holder, the Company shall issue or cause to be issued, and deliver (or otherwise cause to be deliveredif applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of Common Class A Ordinary Shares to which such Holder shall be entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall deliver a Company Order, and the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp stamp, issue, transfer or similar issue or transfer tax or similar governmental charge due on the delivery of Class A Ordinary Shares required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp issue, transfer or similar issue or transfer tax due on the issue delivery of any Common Class A Ordinary Shares upon conversion, unless the tax is due because the Holder requests such shares Class A Ordinary Shares to be issued in a name other than the such Holder’s name, in which case the such Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the Common Class A Ordinary Shares being issued in a name other than the Holdersuch ▇▇▇▇▇▇’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 13.0414.05, no adjustment shall be made for dividends on any Common Class A Ordinary Shares issued upon the conversion of any Note as provided in this Article 1314.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Note Custodian (if other than the Trustee) at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below in this Section 13.02(h), and the Company will not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notesbelow. The Company’s settlement payment and delivery, as the case may be, of the full Conversion Obligation Settlement Amount with respect to any converted Note shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and Common Class A Ordinary Shares, accrued and unpaid interest will shall be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided, however, that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, shall receive the full interest payment due on Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date.
(i) The Person in whose name any Common Shares shall be issuable upon conversion shall be treated as a shareholder of record of such shares as of the close of business on the relevant Conversion Date (if Physical Settlement applies to such conversion) or as of the close of business on the last Trading Day of the relevant Observation Period (if Combination Settlement applies to such conversion), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional Common Share upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Common Share issuable upon conversion based on the Daily VWAP for the relevant Conversion Date, in the case of Physical Settlement, or based on the Daily VWAP for the last Trading Day of the relevant Observation Period, in the case of Combination Settlement. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be issuable upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.busine
Appears in 1 contract
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 13.02, Section 13.03(b) and Section 13.07(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying pay or deliveringdeliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common SharesStock, together, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with Section 13.02(j) (“Physical Settlement”), or a combination of cash and shares of Common SharesStock, together, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with Section 13.02(j) (“Combination Settlement”), at its election, as set forth in this Section 13.02, subject to the requirements of Section 13.07.
(i) All conversions for which the relevant Conversion Date occurs during on or after the date of the Company’s issuance of a Redemption Period shall be settled using Notice with respect to any Notes and prior to the same Settlement Methodrelated Redemption Date, and all conversions for which the relevant Conversion Date occurs on or after December 1August 16, 2023 2027 shall be settled using the same Settlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs during after the Company’s issuance of a Redemption Period Notice with respect to the Notes but prior to the related Redemption Date and any conversions for which the relevant Conversion Date occurs on or after December 1August 16, 20232027, and except to the extent the Company elects Physical Settlement to apply pursuant to Section 13.01(b)(ii), the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates.
(iii) If, in respect of any Conversion Date (or any conversion for which one of the relevant Conversion Date occurs during a Redemption Period on or after December 1periods described in the third immediately succeeding set of parentheses, 2023as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company shall deliver such Settlement Notice to converting Holders no later than the close of business on the VWAP Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions (x) of any Notes for which the relevant Conversion Date occurs (A) during on or after the date of issuance of a Redemption PeriodNotice and prior to the related Redemption Date, in the applicable such Redemption Notice or (B) on or after December 1August 16, 20232027, no later than the close of business on the Business Day immediately preceding December 1August 16, 20232027, (y) for which the Company has irrevocably elected Physical Settlement pursuant to Section 13.01(b)(ii), in the related notice described therein or (z) for which the Company has made an Irrevocable Election, in the Company’s notice of such Irrevocable Election to the Holders). If the Company does not elect a Settlement Method with respect to any conversion prior to the deadline set forth in the immediately preceding sentence, then the Company shall be deemed to have elected the Default Settlement Method in respect of such conversion. Such Settlement Notice, if provided, shall specify the relevant Settlement Method and, in the case of Combination Settlement, the applicable Specified Dollar Amount. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. For the avoidance of doubt, the Company’s failure to so select a Settlement Method or Specified Dollar Amount when so permitted shall not constitute a Default or Event of Default under this Indenture or the Notes. By Subject to Section 13.02(a)(iv), by notice to the HoldersHolders (with a copy to the Trustee and the Conversion Agent), the Company may change the Default Settlement Method to any permitted Settlement Method. In addition, except it subject to Section 13.02(a)(iv), (A) the Company may, by notice to the Holders (with a copy to the Trustee and the Conversion Agent), irrevocably elect to either (x) fix the Settlement Method to any Settlement Method that the Company is then permitted to elect; or (y) eliminate the Company’s right to elect one or more particular Settlement Methods (including, for the avoidance of doubt, eliminating Combination Settlement with a particular Specified Dollar Amount or range of Specified Dollar Amounts) (each, an “Irrevocable Election”); and (B) any Irrevocable Election, if made, will apply to all Note conversions with a Conversion Date that is on or after the date the Company sends notice of such Irrevocable Election to the Holders. For the avoidance of doubt, any Irrevocable Election, if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(i). However, the Company may nonetheless choose to execute such an amendment at its option.
(iv) Notwithstanding anything to the contrary in Section 13.02(a)(iii), the Company may not change the Default Settlement Method or make an Irrevocable Election (x) during any Redemption Period (in respect of Notes converted with a Conversion Date occurring during such Redemption Period), (y) for any conversions for which the Company has irrevocably elected Physical Settlement to apply pursuant to Section 13.01(b)(ii) or (z) on or after December 1August 16, 2023 2027 (in respect of Notes converted with a Conversion Date that occurs on or after December 1August 16, 20232027).
(ivv) The cash, shares of Common Shares Stock or combination of cash and shares of Common Shares Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows have the following meaning in respect of each $1,000 principal amount of Notes being converted:
(A) if Physical Settlement applies to such conversion, a number of shares of Common Shares Stock equal to the Conversion Rate in effect on the Conversion Date for such conversion;
(B) if Cash Settlement applies to such conversion, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 25 40 consecutive VWAP Trading Days during the related Observation Period; and
(C) if Combination Settlement applies to such conversion, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 25 40 consecutive VWAP Trading Days during the related Observation Period.
(vvi) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly as soon as reasonably practicable following the last day of the Observation Period. Promptly after Following such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common ShareStock, if any, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the same. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 13.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the Applicable Procedures procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Shares Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 13 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered for conversion by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 14.02. If Subject to any procedures or requirements of the applicable Depositary in the case of any Global Note, if more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 13.03(b) and Section 13.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if Physical Settlement applies, or on the second Business Day immediately following the last VWAP Trading Day of the Observation Period, if any other Settlement Method applies; provided, however, that the Company shall settle on the Maturity Date (or, if the Maturity Date is not a Business Day, the immediately following Business Day) any conversions to which Physical Settlement applies and whose Conversion Date occurs on or after February 1, 2028. If any shares of Common Shares Stock are due to a converting Holder, the Company shall issue and deliver (or otherwise cause to be delivered) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of shares of Common Shares Stock to which such Holder shall be entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Shares Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Shares Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 13.04, no adjustment shall be made for dividends on any shares of Common Shares Stock issued upon the conversion of any Note as provided in this Article 13.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below in this Section 13.02(h), and the Company will not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common SharesStock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided, however, that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record as of the close of business on the Regular Record Date immediately preceding the Maturity Date, or a Fundamental Change Repurchase Date or Redemption Date referred to above, shall receive the full interest payment due on Maturity the corresponding Interest Payment Date in cash regardless of whether their Notes have been converted following such Regular Record Date, and the converting Holder shall not be required to make a corresponding payment.
(i) The Person in whose name any shares of Common Shares Stock shall be issuable upon conversion shall be treated as a shareholder stockholder of record of such shares as of the close of business on the relevant Conversion Date (if Physical Settlement applies to such conversion) or as of the close of business on the last VWAP Trading Day of the relevant Observation Period (if Combination Settlement applies to such conversion), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional share of Common Share Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Share Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion DateDate (or, if such conversion date is not a VWAP Trading Day, the immediately preceding VWAP Trading Day), in the case of Physical Settlement, or based on the Daily VWAP for the last VWAP Trading Day of the relevant Observation Period, in the case of Combination Settlement. For each Note surrendered for conversion, if the Company has elected (Subject to any procedures or is deemed to have elected) Combination Settlement, the full number of shares that shall be issuable upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.requireme
Appears in 1 contract
Sources: Indenture (Wolfspeed, Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Except as provided in Section 13.02, Section 13.03(b14.03(b) and Section 13.07(a14.07(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying or delivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, pay cash (“Cash Settlement”)) or a combination of cash and shares of Common Stock, Common Shares, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional shares of Common Share Stock in accordance with Section 13.02(j) (“Physical Settlement”), or a combination of cash and Common Shares, together, if applicable, with cash in lieu of delivering any fractional Common Share in accordance with Section 13.02(j14.02(j) (“Combination Settlement”), at its election, as set forth in this Section 13.02, subject to the requirements of Section 13.07converting Holder.
(i) All conversions of (a) Called Notes for which the relevant Conversion Date occurs during the related Redemption Period, (b) on or after October 15, 2030 and (c) following the Company’s irrevocable election of a Redemption Period Settlement Method as described in Section 14.02(a)(iv), in each case, shall be settled using the same Settlement Method, and all conversions for which the relevant Conversion Date occurs on or after December 1, 2023 shall be settled using Method (including the same Settlement MethodSpecified Dollar Amount, if applicable).
(ii) Except Subject to the Company’s irrevocable election of a Settlement Method as described below, and except for any conversions of Called Notes for which the relevant Conversion Date occurs during a the related Redemption Period Period, and any conversions for which the relevant Conversion Date occurs on or after December 1October 15, 20232030, the Company shall use the same Settlement Method (including the same Specified Dollar Amount, if applicable) for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates.
(iii) If, in respect of any Conversion Date (or any conversion conversions of Called Notes for which the relevant Conversion Date occurs during a the related Redemption Period or any conversions for which the relevant Conversion Date occurs on or after December 1October 15, 20232030), the Company elects to deliver a notice Settlement Method, the Company shall inform converting Holders, the Trustee and the Conversion Agent (if other than the Trustee) of such election (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company shall deliver such Settlement Notice to converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of (A) any conversions of any Called Notes for which the relevant Conversion Date occurs (A) during a the related Redemption Period, in the applicable related Notice of Redemption Notice or (B) any conversions of Notes for which the relevant Conversion Date occurs on or after December 1October 15, 20232030, no later than the close of business on the Business Day immediately preceding December 1October 15, 20232030). If the Company does not elect a Settlement Method with respect to calls all or any conversion prior to Notes for redemption and the deadline set forth in the immediately preceding sentencerelated Redemption Date is on or after October 15, 2030, then the Company shall be deemed to have elected the Default Settlement Method in respect of such conversion. Such Settlement Notice, if provided, shall specify the relevant Settlement Method and, in the case of Combination Settlement, the applicable Specified Dollar Amount. If that the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes elects to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. For the avoidance of doubt, the Company’s failure to so select a Settlement Method or Specified Dollar Amount when so permitted shall not constitute a Default or Event of Default under this Indenture or the Notes. By notice to the Holders, the Company may change the Default Settlement Method to any permitted Settlement Method, except it may not change the Default Settlement Method during any Redemption Period (in respect of Notes converted apply for conversions with a Conversion Date occurring during such the related Redemption Period) or on or after December 1, 2023 (in respect of Notes converted Period must be the same Settlement Method that applies to all conversions with a Conversion Date that occurs on or after December 1October 15, 2023)2030. If the Company does not timely elect a Settlement Method, the Company shall no longer have the right to elect Cash Settlement, and the Company shall be deemed to have elected Combination Settlement in respect of its conversion obligation, and the Specified Dollar Amount will be equal to $1,000. If the Company elects Combination Settlement, the related Specified Dollar Amount shall be at least equal to $1,000 per $1,000 principal amount of Notes. If the Company elects Combination Settlement, but the Company does not timely notify the converting Holder of the Specified Dollar Amount, such Specified Dollar Amount shall be deemed to be $1,000.
(iv) By notice to Holders of the Notes (an “Irrevocable Election Notice”), the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to October 15, 2030, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through any Settlement Method that the Company is then permitted to elect (including Combination Settlement with a Specified Dollar Amount of $1,000 or with an ability to continue to set the Specified Dollar Amount at or above any specified amount set forth in such election notice) for all Conversion Dates occurring subsequent to delivery of such notice. If the Company elects to irrevocably fix the Settlement Method to Combination Settlement with an ability to continue to set the Specified Dollar Amount at or above a specified amount, the Company shall, after the date of such election, as the case may be, inform Holders converting their Notes, the Trustee and the Conversion Agent (if other than the Trustee) in writing of such Specified Dollar Amount in respect of the relevant conversion or conversions no later than the relevant settlement method election deadline for such conversion or conversions as described in Section 14.02(a)(iii), or, if the Company does not timely inform the Holders, the Trustee and the Conversion Agent of the Specified Dollar Amount, such Specified Dollar Amount shall be the specific amount set forth in the election notice or, if no specific amount was set forth in the election notice, such Specified Dollar Amount shall be deemed to be $1,000. In no event may the Company elect Combination Settlement with a Specified Dollar Amount that is less than $1,000 per $1,000 principal amount of Notes. Notwithstanding the foregoing, no such irrevocable election will affect any Settlement Method theretofore elected (or deemed to be elected) with respect to any note pursuant to this Section 14.02(a). For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to
Section 10.01 (g); however, the Company may nonetheless choose to execute such an amendment at its option. If the Company irrevocably fixes the Settlement Method pursuant this Section 14.02(a)(iv), then the Company shall either post the fixed settlement method on its website or disclose the same in a current report on Form 8-K (or any successor form) that they filed with the SEC.
(v) The cash, shares of Common Shares Stock or combination of cash and shares of Common Shares Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows in respect of each $1,000 principal amount of Notes being convertedfollows:
(A) if Physical Settlement applies to such conversion, a number of Common Shares equal to the Conversion Rate in effect on the Conversion Date for such conversion;[Reserved]
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement applies to such conversionSettlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 25 50 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement applies to such conversionSettlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 25 50 consecutive Trading Days during the related Observation PeriodPeriod (plus cash in lieu of any fractional share of Common Stock issuable upon conversion).
(vvi) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or and the Daily Conversion Values, as the case may be, Values and the amount of cash payable in lieu of delivering any fractional share of Common Share, if anyStock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the sameDaily Settlement Amounts and the Daily Conversion Values and the amount of cash payable in lieu of delivering any fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 13.02(e14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the Applicable Procedures applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest any Special Interest, if any, payable on the next Special Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any Common Shares to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 13 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 14.02. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 13.03(b) and Section 13.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if Physical Settlement applies, or on the second Business Day immediately following the last Trading Day of the Observation Period, if any other Settlement Method applies. If any Common Shares are due to a converting Holder, the Company shall issue and deliver (or otherwise cause to be delivered) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of Common Shares to which such Holder shall be entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any Common Shares upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the Common Shares being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 13.04, no adjustment shall be made for dividends on any Common Shares issued upon the conversion of any Note as provided in this Article 13.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below in this Section 13.02(h), and the Company will not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and Common Shares, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided, however, that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, shall receive the full interest payment due on Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date.
(i) The Person in whose name any Common Shares shall be issuable upon conversion shall be treated as a shareholder of record of such shares as of the close of business on the relevant Conversion Date (if Physical Settlement applies to such conversion) or as of the close of business on the last Trading Day of the relevant Observation Period (if Combination Settlement applies to such conversion), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional Common Share upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Common Share issuable upon conversion based on the Daily VWAP for the relevant Conversion Date, in the case of Physical Settlement, or based on the Daily VWAP for the last Trading Day of the relevant Observation Period, in the case of Combination Settlement. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be issuable upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Sources: Indenture (Astronics Corp)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 13.0214.02, Section 13.03(b14.03(b) and Section 13.07(a14.07(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying or delivering, as the case may be, to the converting Holder, in respect of each $US$1,000 principal amount of Notes being converted, cash (“Cash Settlement”), Common SharesADSs, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional Common Share ADS in accordance with subsection 0 of this Section 13.02(j) (“Physical 14.02(“Physical Settlement”), ) or a combination of cash and Common SharesADSs, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional Common Share ADS in accordance with subsection 0 of this Section 13.02(j) 14.02 (“Combination Settlement”), at its election, as set forth in this Section 13.02, subject to the requirements of Section 13.0714.02.
(i) All conversions for which the relevant Conversion Date occurs during after the Company’s issuance of a Redemption Period shall be settled using Notice with respect to the same Settlement MethodNotes and prior to the close of business on the second Business Day prior to, the related Redemption Date, and all conversions for which the relevant Conversion Date occurs on or after December 1, 2023 the 46th Scheduled Trading Day before the Maturity Date shall be settled using the same Settlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs during after the Company’s issuance of a Redemption Period Notice with respect to the Notes but prior to the close of business on the second Business Day prior to the related Redemption Date, and any conversions for which the relevant Conversion Date occurs on or after December 1, 2023the 46th Scheduled Trading Day before the Maturity Date, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates.
(iii) If, in respect of any Conversion Date (or any conversion for which the relevant Conversion Date occurs during a Redemption Period on or after December 1period described in the third immediately succeeding set of parentheses, 2023as the case may be), the Company elects to a Settlement Method, the Company shall deliver a written notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be)) to converting Holders, the Company shall deliver such Settlement Notice to converting Holders Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions of any Notes for which the relevant Conversion Date occurs (A) during a the Redemption Period, in the applicable such Redemption Notice or (B) on or after December 1, 2023the 46th Scheduled Trading Day before the Maturity Date, no later than the close of business on 46th Scheduled Trading Day before the Business Day immediately preceding December 1, 2023Maturity Date). If the Company does not elect a Settlement Method with respect to any conversion prior to the deadline set forth in the immediately preceding sentence, then the Company shall no longer have the right to elect Cash Settlement or Physical Settlement for such conversion or during such period and the Company shall be deemed to have elected the Default Combination Settlement Method in respect of its Conversion Obligation, and the Specified Dollar Amount per US$1,000 principal amount of Notes shall be equal to US$1,000 (such conversionsettlement method, the “Default Settlement Method”). Such Settlement Notice, if provided, Notice shall specify the relevant Settlement Method and, and in the case of an election of Combination Settlement, the applicable relevant Settlement Notice shall indicate the Specified Dollar AmountAmount per US$1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $US$1,000 principal amount of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $US$1,000 principal amount of Notes shall be deemed to be $US$1,000.
(iv) By written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to the 46th Scheduled Trading Day before the Maturity Date, at its option, change the Default Settlement Method to any Settlement Method that the Company is then permitted to elect or irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through any Settlement Method that the Company is then permitted to elect, including Combination Settlement with a Specified Dollar Amount per US$1,000 principal amount of Notes of US$1,000 or with an ability to continue to set the Specified Dollar Amount per US$1,000 principal amount of Notes at or above a specific amount set forth in such election notice. If the Company changes the Default Settlement Method or the Company irrevocably elects to fix the Settlement Method, in either case, to Combination Settlement with an ability to continue to set the Specified Dollar Amount per US$1,000 principal amount of Notes at or above a specific amount, the Company will, after the date of such change or election, as the case may be, inform Holders converting their Notes through the Trustee, the Conversion Agent (if other than the Trustee) in writing of such Specified Dollar Amount in respect of the relevant conversion or conversions no later than the relevant deadline for election of a specified Settlement Method as set forth in the immediately preceding paragraph, or, if the Company does not timely notify Holders, the Trustee, and the Conversion Agent (if other than the Trustee) of the Specified Dollar Amount, such Specified Dollar Amount will be the specific amount set forth in the change or election notice or, if no specific amount was set forth in the change or election notice, such Specified Dollar Amount will be US$1,000 per US$1,000 principal amount of Notes. A change in the Default Settlement Method or an irrevocable election shall apply for all conversions of Notes with Conversion Dates occurring subsequent to delivery of such notice; provided that no such change or election will affect any Settlement Method theretofore elected (or deemed to be elected) with respect to any Note. For the avoidance of doubt, such an irrevocable election, if made by the Company’s failure , will be effective without the need to so select a Settlement Method or Specified Dollar Amount when so permitted shall not constitute a Default or Event of Default under amend this Indenture or the Notes, including pursuant to Section 10.01. By notice to the HoldersHowever, the Company may nonetheless choose to execute such an amendment at its option. Concurrently with providing notice to all Holders, the Trustee and the Conversion Agent (if other than the Trustee) of an election to change the Default Settlement Method to any permitted or irrevocably fixes the Settlement Method, except it may not change the Company shall either post the Default Settlement Method during or fixed Settlement Method, as applicable, on the Company’s website or disclose the same in a current report on Form 6-K (or any Redemption Period (in respect of Notes converted successor form) that is filed with a Conversion Date occurring during such Redemption Period) or on or after December 1, 2023 (in respect of Notes converted with a Conversion Date that occurs on or after December 1, 2023)the Commission.
(ivv) The cash, Common Shares ADSs or a combination of cash and Common Shares ADSs, as applicable, in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows follows:
(A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $US$1,000 principal amount of Notes being converted:
(A) if Physical Settlement applies to such conversion, converted a number of Common Shares ADSs equal to the Conversion Rate in effect immediately after the close of business on the relevant Conversion Date for such conversionDate;
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement applies to such conversionSettlement, the Company shall pay to the converting Holder in respect of each $US$1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 25 40 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement applies to such conversionSettlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $US$1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 25 40 consecutive Trading Days during the related Observation Period.
(vvi) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional Common Share, if anyADS, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) in writing of the sameDaily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional ADS. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(bvii) Subject The Holders may elect to Section 13.02(e), before receive Ordinary Shares in lieu of any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) ADSs deliverable upon conversion by specifying in the case of a Global Note, comply with the Applicable Procedures and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of relevant Notice of Conversion (or such election. If a facsimile, PDF or other electronic transmission thereof) (a notice pursuant Holder elects to the applicable procedure of the Depositary or a notice as set forth receive Ordinary Shares in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any Common Shares to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company lieu of any conversion pursuant to this Article 13 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 14.02. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 13.03(b) and Section 13.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if Physical Settlement applies, or on the second Business Day immediately following the last Trading Day of the Observation Period, if any other Settlement Method applies. If any Common Shares are due to a converting Holder, the Company shall issue and deliver (or otherwise cause to be delivered) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of Common Shares to which such Holder shall be entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial ADSs deliverable upon conversion, the Company shall execute and register in the Trustee shall authenticate and deliver to Hong Kong Share Register the Person or upon Persons designated in the written order Notice of the Holder Conversion as holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount such number of Ordinary Shares equal to (i) the unconverted portion number of ADSs deliverable upon conversion as described above under the surrendered Note, “Settlement Amounts” (without payment taking into account any fractional ADS) multiplied by (ii) the number of any service charge Ordinary Shares then represented by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any Common Shares upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the Common Shares being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 13.04, no adjustment shall be made for dividends on any Common Shares issued upon the conversion of any Note as provided in this Article 13.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below in this Section 13.02(h), and the Company will not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and Common Shares, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes one ADS as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided, however, that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, shall receive the full interest payment due on Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date.
(i) The Person in whose name any Common Shares shall be issuable upon conversion shall be treated as a shareholder of record of such shares as of the close of business on the relevant Conversion Date (if in the case of Physical Settlement applies to such conversionSettlement) or as of the close of business on the last Trading Day of the relevant Observation Period (if Combination Settlement applies to such conversion), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional Common Share upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Common Share issuable upon conversion based on the Daily VWAP for the relevant Conversion Date, in the case of Physical Settlement, or based on the Daily VWAP for the last Trading Day of the relevant Observation Period, in the case of Combination Settlement). For each Note surrendered If the Holder has requested in the Notice of Conversion, to the extent permitted under applicable law and the rules and procedures of CCASS, the Company shall take all necessary action to enable the Ordinary Shares to be delivered to such Holder’s designated Hong Kong stock account in CCASS for conversionso long as the Ordinary Shares are listed on the Hong Kong Stock Exchange; provided that, if such Holder elects in the Notice of Conversion to receive Ordinary Shares outside of CCASS or if the restrictive legend on the Notes has not been removed prior to the Conversion Date, the Company has elected (shall make share certificate or is deemed to have elected) Combination Settlement, the full certificates representing such number of Ordinary Shares available for collection at the office of the Hong Kong Share Registrar or, if so requested in the relevant Notice of Conversion, cause the Hong Kong Share Registrar to mail (at the risk, and, if sent at the Holder’s request otherwise than by ordinary mail, at the expense, of the Person to whom such certificate or certificates are sent) such certificate or certificates to the Person and at the place specified in the Notice of Conversion.
(viii) Any Ordinary shares that shall deliverable in lieu of any ADSs will be, prior to the Resale Restriction Termination Date, subject to certain transfer restrictions as set forth in Section 2.05(d) and will not be issuable able to be deposited into CCASS until such restrictions are removed. After removal of such restrictions on transfer and resale, any Ordinary Shares deliverable upon conversion thereof shall of the Notes, if any, will be computed fully fungible with the Ordinary Shares listed on the basis Hong Kong Stock Exchange. The Company further covenants that it will obtain approval to list, subject to official notice of issuance upon conversion of the aggregate Daily Settlement Amounts for Notes, such Ordinary Shares on the relevant Observation Period Hong Kong Stock Exchange and any fractional shares remaining after such computation shall be paid register in cashthe Hong Kong Share Register in the Person or Persons designated in the Notice of Conversion as the holder of the Ordinary Shares in order to facilitate their listing and trading on the Hong Kong Stock Exchange.
Appears in 1 contract
Sources: Indenture (Bilibili Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 13.0214.02, Section 13.03(b14.03(b) and Section 13.07(a14.07(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying pay or deliveringdeliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Physical Settlement”), ) or a combination of cash and shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Combination Settlement”), at its election, as set forth in this Section 13.02, subject to the requirements of Section 13.0714.02.
(i) All conversions for which the relevant Conversion Date occurs during a Redemption Period shall be settled using the same Settlement Method, and all conversions for which the relevant Conversion Date occurs on or after December 1, 2023 shall be settled using the same Settlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs during a Redemption Period and any conversions for which the relevant Conversion Date occurs on or after December 1, 2023, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. However, notwithstanding anything to the contrary in clause (i) above or this clause (ii), if the Company calls any Notes for Optional Redemption, then the Company will specify in the related Notice of Redemption (and, in the case of an Optional Redemption of less than all Notes then outstanding, in a notice sent simultaneously to all Holders of Notes not called for Optional Redemption) the Settlement Method that will apply to all conversions with a Conversion Date that occurs on or after the date the Company sends such Notice of Redemption and on or before the close of business on the Business Day immediately preceding the related Redemption Date.
(iii) If, in respect of any Conversion Date (or any conversion for which the relevant Conversion Date occurs during a Redemption Period on or after December 1period described in the third immediately succeeding set of parentheses, 2023as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company shall deliver such Settlement Notice to converting Holders Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions of any Notes for which the relevant Conversion Date occurs (Ax) during after the date of issuance of a Notice of Redemption Periodand prior to the close of business on the Business Day immediately preceding related Redemption Date, in the applicable such Notice of Redemption Notice as described above or (By) on or after December 1, 2023, no later than the close of business on the Business Day immediately preceding December 1, 2023). If the Company does not elect a Settlement Method with respect to any conversion as described in the immediately preceding sentence prior to the deadline set forth in the immediately preceding sentence, then the Company shall no longer have the right to elect Cash Settlement or Physical Settlement for such conversion or during such period and the Company shall be deemed to have elected the Default Combination Settlement Method in respect of such conversionits Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes to be converted shall be equal to $1,000. Such Settlement Notice, if provided, Notice shall specify the relevant Settlement Method and, and in the case of an election of Combination Settlement, the applicable relevant Settlement Notice shall indicate the Specified Dollar AmountAmount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. For the avoidance of doubt, the Company’s failure to so select a Settlement Method or Specified Dollar Amount when so permitted shall not constitute a Default or Event of Default under this Indenture or the Notes. By notice to the Holders, the Company may change the Default Settlement Method to any permitted Settlement Method, except it may not change the Default Settlement Method during any Redemption Period (in respect of Notes converted with a Conversion Date occurring during such Redemption Period) or on or after December 1, 2023 (in respect of Notes converted with a Conversion Date that occurs on or after December 1, 2023).
(iv) The cash, shares of Common Shares Stock or combination of cash and shares of Common Shares Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows follows:
(A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted:
(A) if Physical Settlement applies to such conversion, converted a number of shares of Common Shares Stock equal to the Conversion Rate in effect on the Conversion Date for such conversionDate;
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement applies to such conversionSettlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 25 50 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement applies to such conversionSettlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 25 50 consecutive Trading Days during the related Observation Period.
(v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Share, if anyStock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) in writing of the sameDaily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 13.02(e14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the Applicable Procedures procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h) and, if required, pay all transfer or similar taxes, if any, and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Shares Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 13 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered for conversion delivered by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 14.0215.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 13.03(b14.03(b) and Section 13.07(a14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement appliesSettlement, or on the second Business Day immediately following the last Trading Day of the Observation Period, if in the case of any other Settlement Method appliesMethod; provided however that with respect to conversions for which Physical Settlement applies and the relevant Conversion Date occurs after the Regular Record Date immediately preceding the Maturity Date, the Company shall deliver and, if applicable, pay the consideration due in respect of the Conversion Obligation, on the Maturity Date. If any shares of Common Shares Stock are due to a converting HolderHolders, the Company shall issue or cause to be issued, and deliver (or otherwise cause to be deliveredif applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of shares of Common Shares Stock to which such Holder shall be entitled, in certificate form or in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any Physical Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Physical Note so surrendered a new Physical Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Physical Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Physical Notes issued upon such conversion being different from the name of the Holder of the old Physical Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Shares Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the Common Shares Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 13.0414.04, no adjustment shall be made for dividends on any shares of Common Shares Stock issued upon the conversion of any Note as provided in this Article 1314.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below in this Section 13.02(h), and the Company will not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notesbelow. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common SharesStock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so convertedconverted (regardless of whether the converting Holder was the Holder of record on such Regular Record Date); provided, however, provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the second Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, Date shall receive the full interest payment due on the Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date.
(i) The Person in whose name any shares of Common Shares Stock shall be issuable upon conversion shall be treated as a shareholder stockholder of record of such shares as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement applies to such conversionSettlement) or as of the close of business on the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement applies to such conversionSettlement), as the case may be. Upon a conversion of such Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional share of Common Share Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Share Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date, Date (in the case of Physical Settlement, ) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period, Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares of Common Stock that shall be issuable issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Sources: Indenture (Vonage Holdings Corp)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 13.0214.02, Section 13.03(b14.03(b) and Section 13.07(a14.07(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying or delivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Physical Settlement”), ) or a combination of cash and shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Combination Settlement”), at its election, as set forth in this Section 13.02, subject to the requirements of Section 13.0714.02.
(i) All conversions for which the relevant Conversion Date occurs (x) on or after May 15, 2026 and (y) during a Redemption Period shall be settled using the same Settlement MethodPeriod, and all conversions for which the relevant Conversion Date occurs on or after December 1, 2023 shall be settled using the same Settlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs during a Redemption Period Period, and any conversions for which the relevant Conversion Date occurs on or after December 1May 15, 20232026, the Company shall use the same Settlement Method for all conversions with occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with that occur on different Conversion Dates.
(iii) If, in respect of any Conversion Date (or any conversion conversions of Called Notes for which the relevant Conversion Date occurs during a the related Redemption Period Period, or for which the relevant Conversion Date occurs on or after December 1May 15, 20232026 ), the Company elects to a Settlement Method, the Company shall deliver a written notice (the “Settlement Notice”) of the relevant Settlement Method so elected in respect of such Conversion Date (or such period, as the case may be)) to converting Holders, the Company shall deliver such Settlement Notice to converting Holders Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions of any Notes for which the relevant Conversion Date (x) occurs (Ai) during a Redemption Period, in the applicable such Redemption Notice or (Bii) on or after December 1May 15, 20232026, no later than the close of business on the Business Day immediately preceding December 1May 15, 20232026 ) or (y) for which the Company has irrevocably elected Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000, to apply pursuant to the provisions described in the immediately succeeding paragraph, in the related notice described in such paragraph) (in each case, the “Settlement Method Election Deadline”). If the Company does not timely elect a Settlement Method prior to the Settlement Method Election Deadline, the Company shall no longer have the right to elect a Settlement Method with respect to any conversion prior to the deadline set forth in the immediately preceding sentenceon such Conversion Date or during such period, then and the Company shall be deemed to have elected the Default Settlement Method in respect of such conversionits Conversion Obligation. Such Settlement Notice, if provided, Notice shall specify the relevant Settlement Method and, and in the case of an election of Combination Settlement, the applicable relevant Settlement Notice shall indicate the Specified Dollar AmountAmount per $1,000 principal amount of Notes. If the Company timely delivers a Settlement Notice electing Combination Settlement (or is deemed to have elected Combination Settlement) in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. For the avoidance of doubt, the Company’s failure to so select timely elect a Settlement Method or specify as applicable a Specified Dollar Amount when so permitted shall not constitute a Default or Event of Default under this Indenture or the NotesIndenture. By written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company may may, from time to time, prior to May 15, 2026, change the Default Settlement Method. By written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to May 15, 2026, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of at least $1,000. If the Company irrevocably elects Combination Settlement with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above a specific amount, the Company shall, after the date of such election, inform Holders of the Notes, Trustee and the Conversion Agent (if other than the Trustee) of such Specified Dollar Amount no later than the Settlement Method to any permitted Settlement MethodElection Deadline, except it may or, if the Company does not timely notify Holders, the Trustee and the Conversion Agent (if other than the Trustee), such Specified Dollar Amount shall be the specific amount set forth in the election notice, unless no specific amount was set forth in the election notice, in which case such Specified Dollar Amount shall be $1,000 per $1,000 principal amount of Notes. A change in the Default Settlement Method during any Redemption Period (in respect or an irrevocable election shall apply for all conversions of Notes converted with Conversion Dates occurring subsequent to delivery of such notice; provided, however, that no such change in the Default Settlement Method or irrevocable election will affect any Settlement Method theretofore elected (or deemed to be elected) with respect to any Note. For the avoidance of doubt, such an irrevocable election, if made by the Company, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(j). However, the Company may nonetheless choose to execute such an amendment at its option. If the Company changes the Default Settlement Method or if the Company irrevocably fixes the Settlement Method pursuant to this paragraph, then, concurrently with providing notice to Holders of such change or election, the Company shall promptly either post the Default Settlement Method or fixed Settlement Method, as the case may be, on its website or disclose the same in a Conversion Date occurring during such Redemption Periodcurrent report on Form 8-K (or any successor form) or on or after December 1, 2023 (in respect of Notes converted that is filed with a Conversion Date that occurs on or after December 1, 2023)the Commission.
(iv) The cash, shares of Common Shares Stock or combination of cash and shares of Common Shares Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows follows:
(A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted:
(A) if Physical Settlement applies to such conversion, converted a number of shares of Common Shares Stock equal to the Conversion Rate in effect on the Conversion Date for such conversionDate;
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement applies to such conversionSettlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 25 40 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement applies to such conversionSettlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 25 40 consecutive Trading Days during the related Observation Period.
(v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Share, if anyStock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) in writing in reasonable detail or in such details as requested by the Depositary of the sameDaily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 13.02(e14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the Applicable Procedures applicable procedures of the Depositary in effect at that time for converting a beneficial interest in a Global Note and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h) and, if required, pay all transfer or similar taxes, if any, as set forth in Section 14.02(d) and Section 14.02(e)) and (ii) in the case of a Physical Note or of a conversion processed outside the Depositary (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Shares Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h). The Trustee (and and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 13 14 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 14.0215.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 13.03(bSection 14.03(b) and Section 13.07(a14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement appliesSettlement, or on the second Business Day immediately following the last Trading Day of the relevant Observation Period, if in the case of any other Settlement Method appliesMethod; provided that, with respect to any Conversion Date occurring during a Redemption Period, the Company shall settle any such conversion for which Physical Settlement is applicable on the relevant Redemption Date; provided further that, notwithstanding the foregoing, with respect to any Conversion Date occurring on or after May 15, 2026, the Company will settle any such conversion for which Physical Settlement is applicable on the Maturity Date. If any shares of Common Shares Stock are due to a converting HolderHolders, the Company shall issue and deliver (or otherwise cause to be delivered) to the Conversion Agent or issued, and deliver to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common Shares Stock to which such Holder shall be entitled, in book-entry format through the Depositary, entitled in satisfaction of the Company’s Conversion Obligation.
(d) In case any Physical Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Physical Note so surrendered a new Physical Note or Physical Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Physical Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Physical Notes issued upon such conversion being different from the name of the Holder of the old Physical Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax or other similar governmental charge due on the issue any issuance of any shares of Common Shares Stock upon conversion, unless the tax is due because the Holder requests any such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Shares Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 13.0414.04, no adjustment shall be made for dividends on any shares of Common Shares Stock issued upon the conversion of any Note as provided in this Article 1314.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below in this Section 13.02(h), and the Company will not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notesbelow. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not includingexcluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not includingexcluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelledcanceled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common SharesStock, any accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date but prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided, however, provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, shall receive the full interest payment due on Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date.
(i) The Person in whose name any Common Shares shall be issuable upon conversion shall be treated as a shareholder of record of such shares as of the close of business on the relevant Conversion Date (if Physical Settlement applies to such conversion) or as of the close of business on the last Trading Day of the relevant Observation Period (if Combination Settlement applies to such conversion), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional Common Share upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Common Share issuable upon conversion based on the Daily VWAP for the relevant Conversion Date, in the case of Physical Settlement, or based on the Daily VWAP for the last Trading Day of the relevant Observation Period, in the case of Combination Settlement. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be issuable upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.Regul
Appears in 1 contract
Sources: Indenture (Veritone, Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 13.0214.02, Section 13.03(b14.03(b) and Section 13.07(a14.07(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying pay or deliveringdeliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Class A Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Class A Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Physical Settlement”), ) or a combination of cash and shares of Class A Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Class A Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Combination Settlement”), at its election, as set forth in this Section 13.02, subject to the requirements of Section 13.0714.02.
(i) All Notwithstanding the foregoing, all conversions for which the relevant Conversion Date occurs during after the Company’s issuance of a Redemption Period Notice of Termination of Conversion Rights with respect to the Notes and prior to the Conversion Rights Termination Date shall be settled using the same Settlement Method, and all by Physical Settlement. All conversions for which the relevant Conversion Date occurs on or after December 1May 15, 2023 2031, shall be settled using the same Settlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs during after the Company’s issuance of a Redemption Period Notice of Termination of Conversion Rights with respect to the Notes but prior to the Conversion Rights Termination Date, and any conversions for which the relevant Conversion Date occurs on or after December 1May 15, 20232031, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates.
(iii) If, in respect of any Conversion Date (or any conversion for which the relevant Conversion Date occurs during a Redemption Period on or after December 1period described in the third immediately succeeding set of parentheses, 2023as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company Company, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions of any Notes for which the relevant Conversion Date occurs (Ax) during after the date of issuance of a Redemption PeriodNotice of Termination of Conversion Rights with respect to the Notes and prior to the Conversion Rights Termination Date, in the applicable Redemption such Notice of Termination of Conversion Rights (which Settlement Method shall be Physical Settlement) or (By) on or after December 1May 15, 20232031, no later than the close of business on the Business Day immediately preceding December 1May 15, 20232031). If the Company does not elect a Settlement Method with respect to any conversion prior to by the deadline set forth in the immediately preceding sentence, then the Company shall no longer have the right to elect a Settlement Method and the Company shall be deemed to have elected the Default Settlement Method in with respect of to such conversion. Such Any Settlement Notice, if provided, Notice shall specify the relevant Settlement Method and, and in the case of an election of Combination Settlement, the applicable Specified Dollar Amount. If the Company delivers a relevant Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not shall indicate a Specified Dollar Amount per $1,000 principal amount of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall Notes. If the Company timely elects Combination Settlement with respect to a conversion but does not timely notify the converting Holder of the applicable Specified Dollar Amount, then the Specified Dollar Amount for such conversion will be deemed to be $1,0001,000 per $1,000 principal amount of Notes. The Company may, by notice to the Holders prior to May 15, 2031, irrevocably fix the Settlement Method, to any Settlement Method that the Company is then permitted to elect, that will apply to all conversions of Notes with a Conversion Date that is on or after the date the Company sends such notice (other than, for the avoidance of doubt, any conversion that occurs during the Conversion Rights Termination Period, with respect to which Physical Settlement shall apply). Concurrently with providing notice to all Holders of a change in the Default Settlement Method as set forth in clause (ii) of the definition thereof or an election to irrevocably fix the Settlement Method, the Company shall promptly issue a current report on Form 8-K or press release announcing that the Company has made such change to the Default Settlement Method as set forth in clause (ii) of the definition thereof or elected to irrevocably fix the Settlement Method, as the case may be. Notwithstanding the foregoing, no such change in the Default Settlement Method as set forth in clause (ii) of the definition thereof or irrevocable election shall affect any Settlement Method theretofore elected (or deemed to be elected) with respect to any Note pursuant to this Section 14.02. For the avoidance of doubt, such an irrevocable election, if made, shall be effective without the Company’s failure need to so select a Settlement Method or Specified Dollar Amount when so permitted shall not constitute a Default or Event of Default under amend this Indenture or the Notes. By notice , including pursuant to the Holdersprovisions described in Section 10.01(g). However, the Company may change nonetheless choose to execute such an amendment at the Default Settlement Method to any permitted Settlement Method, except it may not change the Default Settlement Method during any Redemption Period (in respect of Notes converted with a Conversion Date occurring during such Redemption Period) or on or after December 1, 2023 (in respect of Notes converted with a Conversion Date that occurs on or after December 1, 2023)Company’s option.
(iv) The cash, shares of Class A Common Shares Stock or combination of cash and shares of Class A Common Shares Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows follows:
(A) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted:
(A) if Physical Settlement applies to such conversion, converted a number of shares of Class A Common Shares Stock equal to the Conversion Rate in effect on the Conversion Date for such conversionDate;
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement applies to such conversionSettlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 25 40 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement applies to such conversionSettlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 25 40 consecutive Trading Days during the related Observation Period.
(v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the related Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Class A Common Share, if anyStock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the sameDaily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Class A Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 13.02(e14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the Applicable Procedures procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Class A Common Shares Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 13 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered for conversion delivered by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 14.0215.03. If a Holder submits its Notes for required repurchase, the Holder’s right to withdraw the Fundamental Change Repurchase Notice and convert the Notes that are subject to repurchase will terminate at the close of business on the Business Day immediately preceding the relevant Fundamental Change Repurchase Date. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 13.03(b14.03(b), Section 14.07(a) and Section 13.07(a)14.12, the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects (or is deemed to have elected) Physical Settlement appliesSettlement, or on the second Business Day immediately following the last Trading Day of the relevant Observation Period, if in the case of any other Settlement Method appliesMethod. If any shares of Class A Common Shares Stock are due to a converting Holder, the Company shall issue or cause to be issued, and deliver (or otherwise cause to be deliveredif applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of shares of Class A Common Shares Stock to which such Holder shall be entitled, in certificate form or in book-entry format through the Depositaryformat, in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or the Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Class A Common Shares Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Class A Common Shares Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 13.0414.04, no adjustment shall be made for dividends on any shares of Class A Common Shares Stock issued upon the conversion of any Note as provided in this Article 1314.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below in this Section 13.02(h), and the Company will not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notesbelow. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Class A Common SharesStock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided, however, provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Conversion Rights Termination Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, Date shall receive the full interest payment due on the Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date.
(i) The Person in whose name any the shares of Class A Common Shares Stock shall be issuable upon conversion shall be treated as a shareholder stockholder of record of such shares as of the close of business on the relevant Conversion Date (if the Company elects (or is deemed to have elected) to satisfy the related Conversion Obligation by Physical Settlement applies to such conversionSettlement) or as of the close of business on the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement applies to such conversionSettlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional share of Class A Common Share Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Class A Common Share Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date, Date (in the case of Physical Settlement, ) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period, Period (in the case of Combination Settlement). For each Note surrendered for conversion, conversion if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be issuable upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.fu
Appears in 1 contract
Sources: Indenture (Evolent Health, Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 13.02Section 14.02, Section 13.03(bSection 14.03(b) and Section 13.07(aSection 14.07(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying pay or deliveringdeliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with Section 13.02(jsubsection (j) of this Section 14.02 (“Physical Settlement”), ) or a combination of cash and shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with Section 13.02(jsubsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 13.02, subject to the requirements of Section 13.07Section 14.02.
(i) All conversions for which the relevant Conversion Date occurs during after the Company’s issuance of a Redemption Period shall be settled using Notice with respect to the same Settlement MethodNotes and prior to the related Redemption Date, and all conversions for which the relevant Conversion Date occurs on or after December September 1, 2023 2025 shall be settled using the same Settlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs during after the Company’s issuance of a Redemption Period Notice with respect to the Notes but prior to the related Redemption Date and any conversions for which the relevant Conversion Date occurs on or after December September 1, 20232025, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates.
(iii) If, in respect of any Conversion Date (or any conversion for which the relevant Conversion Date occurs during a Redemption Period on or after December 1period described in the third immediately succeeding set of parentheses, 2023as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), and the Company has not previously irrevocably elected a Settlement Method as described under Section 14.02(a)(vi), the Company, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions of any Notes for which the relevant Conversion Date occurs (Ax) during after the date of issuance of a Redemption PeriodNotice with respect to the Notes and prior to the related Redemption Date, in the applicable such Redemption Notice or (By) on or after December September 1, 20232025, no later than the close of business on the Business Day immediately preceding December September 1, 20232025). If the Company does not elect a Settlement Method with respect to any conversion prior to the deadline set forth in the immediately preceding sentence, then unless the Company has previously irrevocably elected a Settlement Method as described under Section 14.02(a)(vi), the Company shall no longer have the right to elect Cash Settlement or Physical Settlement for such conversion and the Company shall be deemed to have elected the Default Combination Settlement Method in respect of such conversionits Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice, if provided, Notice shall specify the relevant Settlement Method and, and in the case of an election of Combination Settlement, the applicable relevant Settlement Notice shall indicate the Specified Dollar AmountAmount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. For the avoidance of doubt, the Company’s failure to so select a Settlement Method or Specified Dollar Amount when so permitted shall not constitute a Default or Event of Default under this Indenture or the Notes. By notice to the Holders, the Company may change the Default Settlement Method to any permitted Settlement Method, except it may not change the Default Settlement Method during any Redemption Period (in respect of Notes converted with a Conversion Date occurring during such Redemption Period) or on or after December 1, 2023 (in respect of Notes converted with a Conversion Date that occurs on or after December 1, 2023).
(iv) The cash, shares of Common Shares Stock or combination of cash and shares of Common Shares Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows follows:
(A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted:
(A) if Physical Settlement applies to such conversion, converted a number of shares of Common Shares Stock equal to the Conversion Rate in effect on the Conversion Date for such conversionDate;
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement applies to such conversionSettlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 25 20 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement applies to such conversionSettlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 25 20 consecutive Trading Days during the related Observation Period.
(v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Share, if anyStock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the sameDaily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(bvi) Subject to Section 13.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the Applicable Procedures and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any Common Shares to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the The Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 13 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 14.02. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 13.03(b) and Section 13.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if Physical Settlement applies, or on the second Business Day immediately following the last Trading Day of the Observation Period, if any other Settlement Method applies. If any Common Shares are due to a converting Holder, the Company shall issue and deliver (or otherwise cause to be delivered) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of Common Shares to which such Holder shall be entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any Common Shares upon conversionmay, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the Common Shares being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 13.04, no adjustment shall be made for dividends on any Common Shares issued upon the conversion of any Note as provided in this Article 13.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below in this Section 13.02(h), and the Company will not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and Common Shares, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided, however, that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, shall receive the full interest payment due on Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date.
(i) The Person in whose name any Common Shares shall be issuable upon conversion shall be treated as a shareholder of record of such shares as of the close of business on the relevant Conversion Date (if Physical Settlement applies to such conversion) or as of the close of business on the last Trading Day of the relevant Observation Period (if Combination Settlement applies to such conversion), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional Common Share upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Common Share issuable upon conversion based on the Daily VWAP for the relevant Conversion Date, in the case of Physical Settlement, or based on the Daily VWAP for the last Trading Day of the relevant Observation Period, in the case of Combination Settlement. For each Note surrendered for conversion, if the Company has previously elected (or is deemed to have elected) a Settlement Method, at any time prior to any Conversion Date for any Note, and without the consent of the Holders, irrevocably elect a Settlement Method to apply in respect of such Notes converted following the date of the Company’s election. The Company will inform Holders, through the Trustee, of such election and, if Combination SettlementSettlement applies, the full number of shares that shall be issuable upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cashSpecified Dollar Amount.
Appears in 1 contract
Sources: Indenture (Enphase Energy, Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 13.0214.02, Section 13.03(b14.03(b) and Section 13.07(a14.07(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying pay or deliveringdeliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Physical Settlement”), ) or a combination of cash and shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Combination Settlement”), at its election, as set forth in this Section 13.02, subject to the requirements of Section 13.0714.02.
(i) All conversions for which the relevant Conversion Date occurs during a Redemption Period shall be settled using the same Settlement Methodon or after January 1, 2020, and all conversions for which the relevant Conversion Date occurs on or after December 1the Company’s issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date, 2023 shall be settled using the same Settlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs during on or after the Company’s issuance of a Redemption Period Notice but prior to the related Redemption Date and any conversions for which the relevant Conversion Date occurs on or after December January 1, 20232020, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates.
(iii) If, in respect of any Conversion Date (or any conversion for which one of the relevant Conversion Date occurs during a Redemption Period on or after December 1periods described in the third immediately succeeding set of parentheses, 2023as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company Company, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions of any Notes for which the relevant Conversion Date occurs (Ax) during on or after the date of issuance of a Redemption PeriodNotice with respect to the Notes and prior to the related Redemption Date, in the applicable such Redemption Notice or (By) on or after December January 1, 20232020, no later than the close of business on the Business Day immediately preceding December January 1, 20232020). If the Company does not elect a Settlement Method with respect to any conversion prior to the deadline set forth in the immediately preceding sentence, then the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected the Default Combination Settlement Method in respect of such conversionits Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice, if provided, Notice shall specify the relevant Settlement Method and, and in the case of an election of Combination Settlement, the applicable relevant Settlement Notice shall indicate the Specified Dollar AmountAmount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. For the avoidance of doubt, the Company’s failure to so select a Settlement Method or Specified Dollar Amount when so permitted shall not constitute a Default or Event of Default under this Indenture or the Notes. By notice to the Holders, the Company may change the Default Settlement Method to any permitted Settlement Method, except it may not change the Default Settlement Method during any Redemption Period (in respect of Notes converted with a Conversion Date occurring during such Redemption Period) or on or after December 1, 2023 (in respect of Notes converted with a Conversion Date that occurs on or after December 1, 2023).
(iv) The cash, shares of Common Shares Stock or combination of cash and shares of Common Shares Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows follows:
(A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted:
(A) if Physical Settlement applies to such conversion, converted a number of shares of Common Shares Stock equal to the Conversion Rate in effect on the Conversion Date for such conversionDate;
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement applies to such conversionSettlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 25 60 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement applies to such conversionSettlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 25 60 consecutive Trading Days during the related Observation Period.
(v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Share, if anyStock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the sameDaily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 13.02(e14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the Applicable Procedures procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Shares Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 13 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered for conversion by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 14.0215.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 13.03(b14.03(b) and Section 13.07(a14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second third Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement appliesSettlement, or on the second third Business Day immediately following the last Trading Day of the Observation Period, if in the case of any other Settlement Method appliesMethod. If any shares of Common Shares Stock are due to a converting HolderHolders, the Company shall issue and deliver (or otherwise cause to be delivered) issued, and deliver to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common Shares Stock to which such Holder shall be entitled, in book-entry format through the Depositary, entitled in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Shares Stock upon conversion, unless the tax is due because the Holder requests any such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Shares Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 13.0414.04, no adjustment shall be made for dividends on any shares of Common Shares Stock issued upon the conversion of any Note as provided in this Article 1314.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below in this Section 13.02(h), and the Company will not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notesbelow. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common SharesStock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will shall receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided, however, provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, Date shall receive the full interest payment due on the Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date.
(i) The Person in whose name any the shares of Common Shares Stock shall be issuable upon conversion shall be treated as a shareholder become the holder of record of such shares as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement applies to such conversionSettlement) or as of the close of business on the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement applies to such conversionSettlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional share of Common Share Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Share Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date, Date (in the case of Physical Settlement, ) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period, Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be issuable issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Sources: First Supplemental Indenture (Echo Global Logistics, Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 13.0214.02, Section 13.03(b14.03(b) and Section 13.07(a14.07(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying pay or deliveringdeliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being convertedat the Company’s election, cash (“Cash Settlement”), shares of Class A Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional shares of Class A Common Share Stock in accordance with Section 13.02(j14.02(i) (“Physical Settlement”), or a combination of cash and shares of the Class A Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional shares of Class A Common Share Stock in accordance with Section 13.02(j14.02(i) (“Combination Settlement”), at its election, as set forth in this Section 13.02, subject to the requirements of Section 13.0714.02.
(i) All conversions for which the relevant Conversion Date occurs during of Notes (a) occurring after a Redemption Period Notice Date and prior to the related Redemption Date, (b) on or after September 1, 2028 and (c) following the Company’s irrevocable election of a Settlement Method as described in Section 14.02(a)(iii), in each case, shall be settled using the same Settlement Method, and all conversions for which the relevant Conversion Date occurs on or after December 1, 2023 shall be settled using the same Settlement Method.
(ii) . Except for any conversions for which the relevant Conversion Date occurs during (a) after a Redemption Period Notice Date and any conversions for which prior to the relevant Conversion Date occurs related Redemption Date, (b) on or after December September 1, 20232028, and (c) following the Company’s irrevocable election of a Settlement Method as described in Section 14.02(a)(iii), the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates.
(iiiii) IfSubject to the Company’s irrevocable election of a settlement method as described below, in respect of any Conversion Date (or any conversion for which if the relevant Conversion Date occurs during Company elects a Redemption Period on or after December 1, 2023)Settlement Method, the Company elects shall deliver notice in writing to deliver a notice the Trustee and the Conversion Agent (if other than the Trustee) and the Holders so converting through the Conversion Agent, of such election (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company shall deliver such Settlement Notice to converting Holders no later than the close of business on the Trading Day immediately following the relevant related Conversion Date (or, or in the case of any conversions of any Notes for which the relevant Conversion Date occurs (A) during in the case of any conversion of Notes called for Redemption pursuant to Section 16.01 occurring on or after a Redemption PeriodNotice Date and prior to the relevant Redemption Date, in the applicable Redemption Notice Notice, or (B) on or after December September 1, 20232028, no later than the close of business on the Business Day immediately preceding December September 1, 20232028). If the Company does not timely elect a Settlement Method Method, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to any conversion prior to the deadline set forth in the immediately preceding sentencesuch conversion, then and the Company shall be deemed to have elected the Default Settlement Method in respect of such conversion. Such Settlement Notice, if provided, shall specify the relevant Settlement Method and, in the case of Combination Settlement, the applicable Specified Dollar Amount. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes to be converted in such Settlement NoticeObligation, as described below, and the Specified Dollar Amount per will be equal to $1,000 principal amount 1,000. If the Company elects Combination Settlement, but the Company does not timely notify converting Holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of Notes shall the Specified Dollar Amount, such Specified Dollar Amount will be deemed to be $1,000. For the avoidance of doubtBy written notice to Holders, the Company’s failure Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to so select the close of business on the Scheduled Trading Day immediately preceding September 1, 2028, at its option, irrevocably elect (an “Irrevocable Election Notice”) to satisfy its Conversion Obligation with respect to the Notes through Combination Settlement with a Settlement Method or Specified Dollar Amount when so permitted shall not constitute a Default or Event of Default under this Indenture or the Notes. By notice to the Holders, the Company may change the Default Settlement Method to any permitted Settlement Method, except it may not change the Default Settlement Method during any Redemption Period (in respect at least $1,000 for all future conversions of Notes converted with a Conversion Date occurring during subsequent to the date of the delivery of such Redemption PeriodIrrevocable Election Notice and for which another Settlement Method does not otherwise apply. If the Company irrevocably elects Combination Settlement with an ability to continue to set the Specified Dollar Amount at or above a specific amount, the Company shall, after the date of such election, post the fixed Settlement Method on its website or disclose the same in a Current Report on Form 8-K (or any successor form) or on or after December 1, 2023 (in respect of Notes converted that is filed with a Conversion Date that occurs on or after December 1, 2023)the Commission.
(iviii) The cash, shares of Class A Common Shares Stock or combination of cash and shares of Class A Common Shares Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows follows:
(A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted:
(A) if Physical Settlement applies to such conversion, converted a number of shares of Class A Common Shares Stock equal to the Conversion Rate in effect on the Conversion Date for such (plus cash in lieu of any fractional share of Class A Common Stock issuable upon conversion);
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement applies to such conversionSettlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 25 50 consecutive VWAP Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement applies to such conversionSettlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 25 50 consecutive VWAP Trading Days during the related Observation PeriodPeriod (plus cash in lieu of any fractional share of Class A Common Stock issuable upon conversion).
(viv) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional Common Share, if any, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the same. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 13.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the Applicable Procedures and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any Common Shares to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 13 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 14.02. If more than one Note shall be surrendered for conversion at any one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted therebyhereby) so surrendered.
(v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last VWAP Trading Day of the related Observation Period. Promptly after such determination of the Daily Settlement Amount or the Daily Conversion Values, as the case may be, and, if applicable, the amount of cash payable in lieu of any fractional share of Class A Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts, or the Daily Conversion Values, as the case may be, and, if applicable, the amount of cash payable in lieu of fractional shares of Class A Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(i) To convert a beneficial interest in a Global Note (which conversion is irrevocable), the holder of such beneficial interest must:
(A) comply with the Applicable Procedures;
(B) if required, pay funds equal to all documentary, stamp or similar issue or transfer tax owed as set forth in Section 14.02(d) and Section 14.02(e); and
(C) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(g); and
(ii) To convert a Certificated Note, the Holder must:
(A) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile thereof) (a “Notice of Conversion”) and such Note to the Conversion Agent;
(B) if required, furnish appropriate endorsements and transfer documents;
(C) if required, pay funds equal to all documentary, stamp or similar issue or transfer tax owed as set forth in Section 14.02(d) and Section 14.02(e); and
(D) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(g). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion or, if notice on such date is not feasible given the nature of the conversion, promptly thereafter. If a Holder has already delivered a Fundamental Change Repurchase Notice with respect to a Note, such Holder may not surrender such Note for conversion until such Holder has validly withdrawn such Fundamental Change Repurchase Notice (or, in the case of a Global Note, has complied with the Applicable Procedures with respect to such a withdrawal) in accordance with the terms of Section 15.03. If a Holder has already delivered a Fundamental Change Repurchase Notice, such Ho▇▇▇▇’s right to withdraw such notice and convert the Notes that are subject to repurchase will terminate at the close of business on the Business Day immediately preceding the relevant Fundamental Change Repurchase Date. If the Company has designated a Redemption Date pursuant to Section 16.02, a Holder that complies with the requirements for conversion set forth in this Section 14.02(b) shall be deemed to have delivered a notice of its election not have its Notes so redeemed.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) aboveSection 14.02(b). Except as set forth in Subject to the next paragraph and the provisions of Section 13.03(b14.03(b) and Section 13.07(a14.07(a), the Company shall pay or pay and deliver, as the case may be, the consideration Settlement Amount due in respect of the Conversion Obligation to converting Holders on the second Business Day immediately following the relevant Conversion Date, if the Company shall have elected Physical Settlement appliesSettlement, or on the second Business Day immediately following the last VWAP Trading Day of the relevant Observation Period, if in the case of any other Settlement Method appliesMethod. If any shares of Class A Common Shares Stock are due to a converting HolderHolders, the Company shall issue and deliver (or otherwise cause to be delivered) to the Conversion Agent or issued, and deliver to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary, as the case may be, for the full number of shares of Class A Common Shares Stock to which such Holder shall be entitled, in book-entry format through the Depositary, entitled in satisfaction of the Company’s Conversion Obligation.
(d) In case any Certificated Note shall be surrendered for partial conversion, in $1,000 principal amount or an integral multiple of $1,000 in excess thereof, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue issuance of any shares of Class A Common Shares Stock upon conversionconversion of such Note, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Class A Common Shares Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence, or such Holder shall have established to the satisfaction of the Trustee that such tax has been paid.
(f) Except as provided in Section 13.04, no adjustment shall be made for dividends on any Common Shares issued upon the conversion of any Note as provided in this Article 13.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian of the Global Note at the direction of the Trustee, shall make a notation on such Global Note in the books and records of the Trustee and Depositary as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(hg) Upon conversionconversion of a Note, a the converting Holder shall not receive any separate cash payment for representing accrued and unpaid interest, if any, except as set forth below in this Section 13.02(h), and the Company will not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notesparagraph below. The Company’s settlement payment or delivery, as the case may be, of the full Conversion Obligation Settlement Amount upon conversion of any Note shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelledcanceled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Class A Common SharesStock, accrued and unpaid interest will shall be deemed to be paid first out of the any cash paid upon such conversion. Notwithstanding the foregoingimmediately preceding paragraph, if Notes are converted after the close of business on a Regular Record Date for the payment of interest, but prior to the open of business on the immediately following Interest Payment Date, Holders of such Notes as of at the close of business on such Regular Record Date will shall receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so convertedconverted on the corresponding Interest Payment Date (regardless of whether the converting Holder was the Holder of record on the corresponding Regular Record Date); provided, however, provided that no such payment shall need be required made:
(1i) if the Notes are surrendered for conversions conversion following the Regular Record Date immediately preceding the Maturity Date; ;
(2ii) if the Notes surrendered for conversion are subject to Redemption by the Company has specified on a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; ;
(3iii) if the Company has specified a Fundamental Change Repurchase Date (or had the Company not validly invoked the Adequate Cash Conversion Provisions, the Company would have specified a Fundamental Change Repurchase Date) that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or or
(4iv) to the extent of any Defaulted Amountsoverdue interest, if any Defaulted Amounts overdue interest exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, any Redemption Date as described in clause (ii) above, and any Fundamental Change Repurchase Date as described in clause (iii) above shall receive and retain the full interest payment due on the Maturity Date in cash or other applicable Interest Payment Date regardless of whether their Notes have been converted following such Regular Record Date.
(ih) The Person in whose name any shares of Class A Common Shares shall be issuable Stock delivered upon conversion is registered shall be treated as a shareholder become the holder of record of such shares as of the close of business on the relevant Conversion Date (if in the case of Physical Settlement applies to such conversionSettlement) or as of the close of business on the last VWAP Trading Day of the relevant Observation Period (if Combination Settlement applies to such conversion), as in the case may beof Combination Settlement). Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion; provided that (a) the converting Holder shall have the right to receive the Settlement Amount due upon conversion and (b) in the case of a conversion between a Regular Record Date and the corresponding Interest Payment Date, the Holder of record as of the close of business on such Regular Record Date shall have the right to receive the interest payable on such Interest Payment Date, in accordance with Section 14.02(g).
(ji) The Company shall not issue any fractional share of Class A Common Share upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Common Share issuable upon conversion based on the Daily VWAP for the relevant Conversion Date, in the case of Physical Settlement, or based on the Daily VWAP for the last Trading Day of the relevant Observation Period, in the case of Combination Settlement. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be issuable upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.Stock up
Appears in 1 contract
Sources: Indenture (Sphere Entertainment Co.)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 13.02Section 14.02, Section 13.03(bSection 14.03(b) and Section 13.07(aSection 14.07(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying pay or deliveringdeliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with Section 13.02(jsubsection (j) of this Section 14.02 (“Physical Settlement”), ) or a combination of cash and shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with Section 13.02(jsubsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 13.02, subject to the requirements of Section 13.07Section 14.02.
(i) All conversions for which the relevant Conversion Date occurs occurring (x) on or after November 1, 2022 or (y) during a Redemption Period shall be settled using the same Settlement Method, and all conversions for which the relevant Conversion Date occurs on or after December 1, 2023 shall be settled using the same Settlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs during a Redemption Period and any conversions for which the relevant Conversion Date occurs on or after December November 1, 20232022, the Company shall use the same Settlement Method for all conversions with occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with that occur on different Conversion Dates.
(iii) If, in respect of any Conversion Date (or any conversion for which the relevant Conversion Date occurs conversions occurring (x) during a Redemption Period or (y) on or after December November 1, 20232022, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company shall deliver such Settlement Notice to converting Holders Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions of any Notes for which the relevant Conversion Date occurs occurring (Ax) during a Redemption Period, in the applicable such Redemption Notice Notice, or (By) on or after December November 1, 20232022, no later than the close of business on the Business Day immediately preceding December November 1, 20232022). If the Company does not timely elect a Settlement Method with respect to any conversion prior to the deadline set forth in the immediately preceding sentence, then the Company shall no longer have the right to elect Cash Settlement or Physical Settlement for such conversion or during such period and the Company shall be deemed to have elected the Default Combination Settlement Method in respect of such conversionits Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes to be converted shall be equal to $1,000. Such Settlement Notice, if provided, Notice shall specify the relevant Settlement Method and, and in the case of an election of Combination Settlement, the applicable relevant Settlement Notice shall indicate the Specified Dollar AmountAmount per $1,000 principal amount of Notes to be converted. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes to be converted shall be deemed to be $1,000. For the avoidance of doubt, the Company’s failure to so select a Settlement Method or Specified Dollar Amount when so permitted shall not constitute a Default or Event of Default under this Indenture or the Notes. By notice to the Holders, the Company may change the Default Settlement Method to any permitted Settlement Method, except it may not change the Default Settlement Method during any Redemption Period (in respect of Notes converted with a Conversion Date occurring during such Redemption Period) or on or after December 1, 2023 (in respect of Notes converted with a Conversion Date that occurs on or after December 1, 2023).
(iv) The cash, shares of Common Shares Stock or combination of cash and shares of Common Shares Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows follows:
(A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted:
(A) if Physical Settlement applies to such conversion, converted a number of shares of Common Shares Stock equal to the Conversion Rate in effect on the Conversion Date for such conversionDate;
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement applies to such conversionSettlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 25 60 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement applies to such conversionSettlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 25 60 consecutive Trading Days during the related Observation Period.
(v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Share, if anyStock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the sameDaily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 13.02(eSection 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the Applicable Procedures procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(hSection 14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Shares Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(hSection 14.02(h). The Trustee (and and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 13 Article 14 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Holder ▇▇▇▇▇▇ has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 14.02Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b(b) above. Except as set forth in Section 13.03(bSection 14.03(b) and Section 13.07(aSection 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement appliesSettlement, or on the second Business Day immediately following the last Trading Day of the relevant Observation Period, if in the case of any other Settlement Method appliesMethod. If any shares of Common Shares Stock are due to a converting HolderHolders, the Company shall issue and deliver (or otherwise cause to be delivered) issued, and deliver to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common Shares Stock to which such Holder shall be entitled, in book-entry format through the Depositary, entitled in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Shares Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Shares Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 13.04Section 14.04, no adjustment shall be made for dividends on any shares of Common Shares Stock issued upon the conversion of any Note as provided in this Article 1314.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below in this Section 13.02(h)below, and the Company will shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notesinterest. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common SharesStock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to until the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so convertedconverted (regardless of whether or not the converting Holder was the record holder on such Regular Record Date); provided, however, provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Redemption Date that is after a Regular Record Date and on or prior to the Business second Scheduled Trading Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, Date shall receive the full interest payment due on the Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date.
(i) The Person in whose name the certificate for any shares of Common Shares shall be issuable Stock delivered upon conversion is registered shall be treated as a shareholder stockholder of record of such shares as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement applies to such conversionSettlement) or as of the close of business on the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement applies to such conversionSettlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional share of Common Share Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Share Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date, Date (in the case of Physical Settlement, ) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period, Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be issuable issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Sources: Indenture (Five9, Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Except as provided in Section 13.02, Section 13.03(b14.03(b) and Section 13.07(a14.07(a), upon conversion of any Note, on the second Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall satisfy its Conversion Obligation by paying or delivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (a “Cash Settlement”)Settlement Amount” equal to the sum of the Daily Settlement Amounts for each of the 60 Trading Days during the relevant Observation Period for such Note, Common Shares, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with Section 13.02(jsubsection (j) (“Physical Settlement”), or a combination of cash and Common Shares, together, if applicable, with cash in lieu of delivering any fractional Common Share in accordance with Section 13.02(j) (“Combination Settlement”), at its election, as set forth in this Section 13.02, subject to the requirements of Section 13.0714.02.
(i) All conversions of Called Notes for which the relevant Conversion Date occurs during a the related Redemption Period shall be settled using the same Settlement MethodPeriod, and all conversions for which the relevant Conversion Date occurs on or after December 1January 15, 2023 2026, shall be settled using the same Settlement Methodforms and amounts of consideration.
(ii) Except for any conversions of Called Notes for which the relevant Conversion Date occurs during a the related Redemption Period Period, and any conversions for which the relevant Conversion Date occurs on or after December 1January 15, 20232026, the Company shall use the same Settlement Method forms and amounts of consideration for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method forms and amounts of consideration with respect to conversions with different Conversion Dates.
(iii) If, in respect of any Conversion Date (or any conversion conversions of Called Notes for which the relevant Conversion Date occurs during a the related Redemption Period or any conversions for which the relevant Conversion Date occurs on or after December 1January 15, 20232026), the Company elects to deliver settle all or a notice (the “Settlement Notice”) portion of its Conversion Obligation in excess of the relevant Settlement Method principal portion of the Notes being converted in cash in respect of such Conversion Date (or such period, as the case may be), the Company shall deliver such Settlement Notice to inform converting Holders through (and upon a written request to) the Trustee of such election (the “Settlement Notice”) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of (A) any conversions of any Called Notes for which the relevant Conversion Date occurs (A) during a the related Redemption Period, in the applicable related Notice of Redemption Notice or (B) any conversions of Notes for which the relevant Conversion Date occurs on or after December 1January 15, 20232026, no later than January 15, 2026) and the close Company shall indicate in such Settlement Notice the percentage of business on the Business Day immediately preceding December 1, 2023Conversion Obligation in excess of the principal portion of the Notes being converted that shall be paid in cash (the “Cash Percentage”). If the Company does not elect a Settlement Method with respect to any conversion Cash Percentage prior to the deadline set forth in the immediately preceding sentence, then the Company shall no longer have the right to elect a Cash Percentage with respect to any conversion on such Conversion Date or during such period, and the Company shall be deemed to have elected the Default Settlement Method in a Cash Percentage of 0% with respect of to such conversion. Such Settlement Notice, if provided, shall specify the relevant Settlement Method and, in the case of Combination Settlement, the applicable Specified Dollar Amount. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. For the avoidance of doubt, the Company’s failure to so select a Settlement Method or Specified Dollar Amount when so permitted shall not constitute a Default or Event of Default under this Indenture or the Notes. By notice to the Holders, the Company may change the Default Settlement Method to any permitted Settlement Method, except it may not change the Default Settlement Method during any Redemption Period (in respect of Notes converted with a Conversion Date occurring during such Redemption Period) or on or after December 1, 2023 (in respect of Notes converted with a Conversion Date that occurs on or after December 1, 2023).
(iv) The cash, Common Shares or combination of cash and Common Shares in respect of any conversion of Notes (the “Daily Settlement Amount”) shall be computed as follows in respect of each $1,000 principal amount of Notes being converted:
(A) if Physical Settlement applies to such conversion, a number of Common Shares equal to the Conversion Rate in effect on the Conversion Date for such conversion;
(B) if Cash Settlement applies to such conversionAmounts, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 25 consecutive Trading Days during the related Observation Period; and
(C) if Combination Settlement applies to such conversion, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 25 consecutive Trading Days during the related Observation Period.
(v) The Daily Net Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts, the Daily Net Settlement Amounts or (if applicable) and the Daily Conversion Values, as the case may be, Values and the amount of cash payable in lieu of delivering any fractional share of Common Share, if anyStock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the sameDaily Settlement Amounts, the Daily Net Settlement Amounts (if applicable) and the Daily Conversion Values and the amount of cash payable in lieu of delivering any fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 13.02(e14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the Applicable Procedures applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Shares Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of receipt by it of any conversion pursuant to this Article 13 Notice of Conversion or corresponding transmission through the Depositary on the Conversion Date for such conversiondate thereof or as soon as practicable thereafter. No Notes may be surrendered for conversion by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 14.0215.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 13.03(b) and Section 13.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if Physical Settlement applies, or on the second Business Day immediately following the last Trading Day of the Observation Period, if any other Settlement Method applies. If any shares of Common Shares Stock are due to a converting Holder, the Company shall issue or cause to be issued, and deliver (or otherwise cause to be deliveredif applicable) to the Conversion Agent Company’s stock transfer or other agent or to such Holder, or such Holder’s nominee or nominees, the full number of shares of Common Shares Stock to which such Holder shall be entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Shares Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent Company’s stock transfer or other agent may refuse to deliver the certificates representing the shares of Common Shares Stock being issued in a name other than the Holder’s name until the Trustee such agent receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 13.0414.04, no adjustment shall be made for dividends on any shares of Common Shares Stock issued upon the conversion of any Note as provided in this Article 1314.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below in this Section 13.02(h), and the Company will not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notesbelow. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and Common SharesNotes, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided, however, provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amountsoverdue interest, if any Defaulted Amounts overdue interest exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, Date shall receive the full interest payment due on the Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date.
(i) The Person in whose name any shares of Common Shares Stock shall be issuable upon conversion shall be treated as a shareholder stockholder of record of such shares as of the close of business on the relevant Conversion Date (if Physical Settlement applies to such conversion) or as of the close of business on the last Trading Day of the relevant Observation Period (if Combination Settlement applies to such conversion), as the case may bePeriod. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional share of Common Share Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Share Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date, in the case of Physical Settlement, or based on the Daily VWAP for the last Trading Day of the relevant Observation Period, in the case of Combination Settlement. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares shares, if any, that shall be issuable issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Sources: Indenture (Lci Industries)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 13.02Section 14.02, Section 13.03(bSection 14.03(b) and Section 13.07(aSection 14.07(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying pay or deliveringdeliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with Section 13.02(jsubsection (j) of this Section 14.02 (“Physical Settlement”), ) or a combination of cash and shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with Section 13.02(jsubsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 13.02, subject to the requirements of Section 13.07Section 14.02.
(i) All conversions for which the relevant Conversion Date occurs during after the Company’s issuance of a Redemption Period shall be settled using Notice with respect to the same Settlement MethodNotes and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date, and all conversions for which the relevant Conversion Date occurs on or after December 1November 15, 2023 2027 shall be settled using the same Settlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs during after the Company’s issuance of a Redemption Period Notice with respect to the Notes but prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date, and any conversions for which the relevant Conversion Date occurs on or after December 1November 15, 20232027, the Company shall use the same Settlement Method for all conversions with occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with occurring on different Conversion Dates.
(iii) If, in respect of any Conversion Date (or any conversion for which one of the relevant Conversion Date occurs during a Redemption Period on or after December 1periods described in the fourth immediately succeeding set of parentheses, 2023as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company shall deliver such Settlement Notice in writing to converting Holders Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions of any Notes for which the relevant Conversion Date occurs (Ax) during after the date of issuance of a Redemption Period, in Notice with respect to the applicable Redemption Notice or (B) on or after December 1, 2023, no later than Notes and prior to the close of business on the Business second Scheduled Trading Day immediately preceding December 1the related Redemption Date, 2023in such Redemption Notice, or (y) on or after November 15, 2027, no later than November 15, 2027) (in each case, the “Settlement Method Election Deadline”). If the Company does not elect a Settlement Method as described in the immediately preceding sentence by the Settlement Method Election Deadline, the Company shall no longer have the right to elect a Settlement Method with respect to any conversion prior to on such Conversion Date (or during the deadline set forth in relevant period, as the immediately preceding sentencecase may be), then and the Company shall be deemed to have elected the Default Settlement Method in respect of such conversion. Such Settlement Notice, if provided, Notice shall specify the relevant Settlement Method and, and in the case of an election of Combination Settlement, the applicable relevant Settlement Notice shall indicate the Specified Dollar AmountAmount per $1,000 principal amount of Notes. If the Company delivers timely elects Combination Settlement (or is deemed to have elected Combination Settlement) with respect to a conversion but does not timely notify the converting Holder of the applicable Specified Dollar Amount per $1,000 principal amount of Notes, then the Specified Dollar Amount per $1,000 principal amount of Notes for such conversion shall be deemed to be $1,000. If the Company calls any Notes for redemption pursuant to Article 16, and the related Redemption Date is on or after November 15, 2027 (x) if the date of the relevant Redemption Notice occurs prior to the date the Company elects (or is deemed to have elected) a Settlement Notice electing Combination Settlement Method in respect of its all conversions with a Conversion Obligation but does not indicate Date occurring on or after November 15, 2027, then, in respect of all conversions with a Conversion Date occurring on or after November 15, 2027, the Company must elect the Settlement Method that the Company elected (or was deemed to have elected) in such Redemption Notice and (y) if the date of such Redemption Notice occurs on or after the date the Company elects (or is deemed to have elected) a Settlement Method in respect of all conversions with a Conversion Date occurring on or after November 15, 2027, then the Company must elect in such Redemption Notice the Settlement Method that the Company elected (or was deemed to have elected) in respect of all conversions with a Conversion Date occurring on or after November 15, 2027. The Company may, from time to time, change the Default Settlement Method prior to November 15, 2027 by sending written notice of the new Default Settlement Method to the Holders, the Trustee and the Conversion Agent (if other than the Trustee). In addition, the Company may, prior to November 15, 2027, by written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee), irrevocably fix the Settlement Method to any Settlement Method that the Company is then permitted to elect, including Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 or with an ability to be converted continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above a specific amount set forth in such election notice. If the Company changes the Default Settlement NoticeMethod or the Company irrevocably elects to fix the Settlement Method, in either case, to Combination Settlement with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above a specific amount, the Company shall, after the date of such change or election, as the case may be, inform Holders converting their Notes, the Trustee and the Conversion Agent (if other than the Trustee) of such Specified Dollar Amount per $1,000 principal amount of Notes no later than the relevant Settlement Method Election Deadline, or, if the Company does not timely notify Holders, such Specified Dollar Amount per $1,000 principal amount of Notes shall be the specific amount set forth in the election notice or, if no specific amount was set forth in the election notice, such Specified Dollar Amount per $1,000 principal amount of Notes will be $1,000. A change in the Default Settlement Method or an irrevocable election shall apply to all conversions with a Conversion Date that is on or after the date the Company sends such notice. Concurrently with providing notice to all the Holders, the Trustee and the Conversion Agent (if other than the Trustee) of a change in the Default Settlement Method or an election to irrevocably fix the Settlement Method, the Company shall promptly post the Default Settlement Method or fixed Settlement Method, as the case may be, on the Company’s website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission. Notwithstanding the foregoing, no such change in the Default Settlement Method or irrevocable election shall affect any Settlement Method theretofore elected (or deemed to be $1,000elected) with respect to any Note pursuant to this Section 14.02(a). For the avoidance of doubt, such an irrevocable election, if made, shall be effective without the Company’s failure need to so select a Settlement Method or Specified Dollar Amount when so permitted shall not constitute a Default or Event of Default under amend this Indenture or the Notes, including pursuant to Section 10.01(h) of this Indenture. By notice to the HoldersHowever, the Company may change nonetheless choose to execute such an amendment at the Default Settlement Method to any permitted Settlement Method, except it may not change the Default Settlement Method during any Redemption Period (in respect of Notes converted with a Conversion Date occurring during such Redemption Period) or on or after December 1, 2023 (in respect of Notes converted with a Conversion Date that occurs on or after December 1, 2023)Company’s option.
(iv) The cash, shares of Common Shares Stock or combination of cash and shares of Common Shares Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows follows:
(A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted:
(A) if Physical Settlement applies to such conversion, converted a number of shares of Common Shares Stock equal to the Conversion Rate in effect on the Conversion Date for such conversion(plus cash in lieu of any fractional share);
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement applies to such conversionSettlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 25 50 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement applies to such conversionSettlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 25 50 consecutive Trading Days during the related Observation PeriodPeriod (plus cash in lieu of any fractional share).
(v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Share, if anyStock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the sameDaily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 13.02(eSection 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the Applicable Procedures procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and/or all transfer or similar taxes as set forth in Section 13.02(h14.02(e) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Shares Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and documents, (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (5) if required by Section 13.02(h14.02(e), pay any transfer or similar taxes. The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 13 Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered for conversion by a Holder thereof if such Holder ▇▇▇▇▇▇ has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 14.02Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b(b) above. Except as set forth in Section 13.03(bSection 14.03(b) and Section 13.07(aSection 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement applies(provided that, with respect to any Conversion Date occurring on or after the Regular Record Date immediately preceding the Maturity Date, the Company shall deliver such consideration due upon Physical Settlement in respect of the Conversion Obligation on the Maturity Date), or on the second Business Day immediately following the last Trading Day of the Observation Period, if in the case of any other Settlement Method appliesMethod. If any shares of Common Shares Stock are due to a converting Holder, the Company shall issue or cause to be issued, and deliver (or otherwise cause to be deliveredif applicable) to the Conversion Agent or to such converting Holder, or such Holder’s nominee or nominees, the full number of shares of Common Shares Stock to which such Holder shall be entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Shares Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Shares Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 13.04Section 14.04, no adjustment shall be made for dividends on any shares of Common Shares Stock issued upon the conversion of any Note as provided in this Article 1314.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below in this Section 13.02(h), and the Company will shall not be required to adjust the Conversion Rate for any accrued and unpaid interest on any converted Notesinterest. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and Common Shares, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided, however, that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, shall receive the full interest payment due on Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date.
(i) The Person in whose name any Common Shares shall be issuable upon conversion shall be treated as a shareholder of record of such shares as of the close of business on the relevant Conversion Date (if Physical Settlement applies to such conversion) or as of the close of business on the last Trading Day of the relevant Observation Period (if Combination Settlement applies to such conversion), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional Common Share upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Common Share issuable upon conversion based on the Daily VWAP for the relevant Conversion Date, in the case of Physical Settlement, or based on the Daily VWAP for the last Trading Day of the relevant Observation Period, in the case of Combination Settlement. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be issuable upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.in
Appears in 1 contract
Sources: Indenture (Granite Construction Inc)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 13.02, Section 13.03(bExcept as provided in Section 14.03(b) and Section 13.07(aSection 14.07(a), upon conversion of any Note, on the second Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall satisfy its Conversion Obligation by paying or delivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (a “Cash Settlement”)Settlement Amount” equal to the sum of the Daily Settlement Amounts for each of the 60 Trading Days during the relevant Observation Period for such Note, Common Shares, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with Section 13.02(jsubsection (j) (“Physical Settlement”), or a combination of cash and Common Shares, together, if applicable, with cash in lieu of delivering any fractional Common Share in accordance with Section 13.02(j) (“Combination Settlement”), at its election, as set forth in this Section 13.02, subject to the requirements of Section 13.07Section 14.02.
(i) All conversions of Called Notes for which the relevant Conversion Date occurs during a the related Redemption Period shall be settled using the same Settlement MethodPeriod, and all conversions for which the relevant Conversion Date occurs on or after December October 1, 2023 2028, shall be settled using the same Settlement Methodforms and amounts of consideration.
(ii) Except for any conversions of Called Notes for which the relevant Conversion Date occurs during a the related Redemption Period Period, and any conversions for which the relevant Conversion Date occurs on or after December October 1, 20232028, the Company shall use the same Settlement Method forms and amounts of consideration for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method forms and amounts of consideration with respect to conversions with different Conversion Dates.
(iii) If, in respect of any Conversion Date (or any conversion conversions of Called Notes for which the relevant Conversion Date occurs during a the related Redemption Period or any conversions for which the relevant Conversion Date occurs on or after December October 1, 20232028), the Company elects to deliver settle all or a notice (the “Settlement Notice”) portion of its Conversion Obligation in excess of the relevant Settlement Method principal portion of the Notes being converted in cash in respect of such Conversion Date (or such period, as the case may be), the Company shall deliver such Settlement Notice to inform converting Holders of such election (the “Settlement Notice”) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of (A) any conversions of any Called Notes for which the relevant Conversion Date occurs (A) during a the related Redemption Period, in the applicable related Notice of Redemption Notice or (B) any conversions of Notes for which the relevant Conversion Date occurs on or after December October 1, 20232028, no later than the close of business on the Business Day immediately preceding December October 1, 20232028) and the Company shall indicate in such Settlement Notice the percentage of the Conversion Obligation in excess of the principal portion of the Notes being converted that shall be paid in cash (the “Cash Percentage”). If the Company does not elect a Settlement Method with respect to any conversion Cash Percentage prior to the deadline set forth in the immediately preceding sentence, then the Company shall no longer have the right to elect a Cash Percentage with respect to any conversion on such Conversion Date or during such period, and the Company shall be deemed to have elected the Default Settlement Method in a Cash Percentage of 0% with respect of to such conversion. Such Settlement Notice, if provided, shall specify the relevant Settlement Method and, in the case of Combination Settlement, the applicable Specified Dollar Amount. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. For the avoidance of doubt, the Company’s failure to so select a Settlement Method or Specified Dollar Amount when so permitted shall not constitute a Default or Event of Default under this Indenture or the Notes. By notice to the Holders, the Company may change the Default Settlement Method to any permitted Settlement Method, except it may not change the Default Settlement Method during any Redemption Period (in respect of Notes converted with a Conversion Date occurring during such Redemption Period) or on or after December 1, 2023 (in respect of Notes converted with a Conversion Date that occurs on or after December 1, 2023).
(iv) The cash, Common Shares or combination of cash and Common Shares in respect of any conversion of Notes (the “Daily Settlement Amount”) shall be computed as follows in respect of each $1,000 principal amount of Notes being converted:
(A) if Physical Settlement applies to such conversion, a number of Common Shares equal to the Conversion Rate in effect on the Conversion Date for such conversion;
(B) if Cash Settlement applies to such conversionAmounts, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 25 consecutive Trading Days during the related Observation Period; and
(C) if Combination Settlement applies to such conversion, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 25 consecutive Trading Days during the related Observation Period.
(v) The Daily Net Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts, the Daily Net Settlement Amounts or (if applicable) and the Daily Conversion Values, as the case may be, Values and the amount of cash payable in lieu of delivering any fractional share of Common Share, if anyStock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) in writing of the sameDaily Settlement Amounts, the Daily Net Settlement Amounts (if applicable) and the Daily Conversion Values and the amount of cash payable in lieu of delivering any fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 13.02(eSection 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the Applicable Procedures applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(hSection 14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Shares Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(hSection 14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 13 Article 14 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Holder ▇▇▇▇▇▇ has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 14.02Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b(b) above. Except as set forth in Section 13.03(b) and Section 13.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if Physical Settlement applies, or on the second Business Day immediately following the last Trading Day of the Observation Period, if any other Settlement Method applies. If any shares of Common Shares Stock are due to a converting Holder, the Company shall issue or cause to be issued, and deliver (or otherwise cause to be deliveredif applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of shares of Common Shares Stock to which such Holder shall be entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax or other similar governmental charge due on the issue of any shares of Common Shares Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Shares Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 13.04Section 14.04, no adjustment shall be made for dividends on any shares of Common Shares Stock issued upon the conversion of any Note as provided in this Article 1314.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below in this Section 13.02(h), and the Company will not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notesbelow. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and Common SharesNotes, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided, however, provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business second Scheduled Trading Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amountsoverdue interest, if any Defaulted Amounts overdue interest exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, Date shall receive the full interest payment due on the Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date.
(i) The Person in whose name any shares of Common Shares Stock shall be issuable upon conversion shall be treated as a shareholder stockholder of record of such shares as of the close of business on the relevant Conversion Date (if Physical Settlement applies to such conversion) or as of the close of business on the last Trading Day of the relevant Observation Period (if Combination Settlement applies to such conversion), as the case may bePeriod. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional share of Common Share Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Share Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date, in the case of Physical Settlement, or based on the Daily VWAP for the last Trading Day of the relevant Observation Period, in the case of Combination Settlement. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares shares, if any, that shall be issuable issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 13.02, Section 13.03(b) and 13.03(b)and Section 13.07(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying pay or deliveringdeliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 13.02 (“Physical Settlement”), ) or a combination of cash and shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 13.02 (“Combination Settlement”), at its election, as set forth in this Section 13.02. Notwithstanding the foregoing, subject at any time prior to December 1, 2026, the Company may make a one-time irrevocable election to settle all conversions of the Notes from the date of such notice pursuant to clause (D) of Section 13.02(c)(iv) (the “Net Share Settlement Election”). Upon making the Net Share Settlement Election, the Company will promptly deliver a written notice to the requirements Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) in a manner contemplated by this Indenture, including through the facilities of the Depositary. For the avoidance of doubt, the Net Share Settlement Election, if made, will be effective without the need to amend this Indenture or the Notes. Simultaneously with providing written notice of the Net Share Settlement Election, the Company will publish the information in such notice on its website or through such other public medium as the Company may use at that time. If the Company has made the irrevocable Net Share Settlement Election, the Company may only settle the conversion of the applicable Notes pursuant to clause (D) of Section 13.0713.02(a)(iv).
(i) All conversions for which the relevant Conversion Date occurs during a Redemption Period shall be settled using the same Settlement Methodon or after December 1, 2026 and all conversions for which the relevant Conversion Date occurs on or after December 1, 2023 the issuance of a Notice of Redemption and prior to the related Redemption Date shall be settled using the same Settlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs during after the Company’s issuance of a Notice of Redemption Period with respect to the Notes, but prior to the related Redemption Date, and any conversions for which the relevant Conversion Date occurs on or after December 1, 20232026, the Company shall use the same Settlement Method for all conversions with occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with that occur on different Conversion DatesTrading Days.
(iii) If, in respect of any Conversion Date (or any conversion for which conversions occurring after the relevant Conversion Date occurs during issuance of a Notice of Redemption Period or on or after December 1, 20232026, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be)) and has not made the Net Share Settlement Election, the Company shall deliver such Settlement Notice to converting Holders Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions occurring (x) after the date of any Notes for which issuance of a Notice of Redemption and prior to the relevant Conversion Date occurs (A) during a related Redemption PeriodDate, in the applicable such Notice of Redemption Notice or (By) on or after December 1, 20232026, no later than the close of business on the Business Day immediately preceding December 1, 20232026). If the Company does not elect a Settlement Method with respect to any conversion prior to the deadline set forth in the immediately preceding sentence, then the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected the Default Combination Settlement Method in respect of such conversionits Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice, if provided, Notice shall specify the relevant Settlement Method and, and in the case of an election of Combination Settlement, the applicable relevant Settlement Notice shall indicate the Specified Dollar AmountAmount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. For the avoidance of doubt, the Company’s failure to so select a Settlement Method or Specified Dollar Amount when so permitted shall not constitute a Default or Event of Default under this Indenture or the Notes. By notice to the Holders, the Company may change the Default Settlement Method to any permitted Settlement Method, except it may not change the Default Settlement Method during any Redemption Period (in respect of Notes converted with a Conversion Date occurring during such Redemption Period) or on or after December 1, 2023 (in respect of Notes converted with a Conversion Date that occurs on or after December 1, 2023).
(iv) The cash, shares of Common Shares Stock or combination of cash and shares of Common Shares Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows follows:
(A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted:
(A) if Physical Settlement applies to such conversion, converted a number of shares of Common Shares Stock equal to the Conversion Rate in effect on the Conversion Date for such conversionDate;
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement applies to such conversionSettlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 25 40 consecutive Trading Days during the related Observation Period; and;
(C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement applies to such conversionSettlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 25 40 consecutive Trading Days during the related Observation Period; and
(D) if the Company has made the irrevocable Net Share Settlement Election, the Company shall satisfy its Conversion Obligation in respect of such conversion by Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000.
(v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Share, if anyStock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the sameDaily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 13.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the Applicable Procedures and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any Common Shares to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 13 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 14.02. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 13.03(b) and Section 13.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if Physical Settlement applies, or on the second Business Day immediately following the last Trading Day of the Observation Period, if any other Settlement Method applies. If any Common Shares are due to a converting Holder, the Company shall issue and deliver (or otherwise cause to be delivered) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of Common Shares to which such Holder shall be entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any Common Shares upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the Common Shares being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 13.04, no adjustment shall be made for dividends on any Common Shares issued upon the conversion of any Note as provided in this Article 13.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below in this Section 13.02(h), and the Company will not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and Common Shares, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided, however, that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, shall receive the full interest payment due on Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date.
(i) The Person in whose name any Common Shares shall be issuable upon conversion shall be treated as a shareholder of record of such shares as of the close of business on the relevant Conversion Date (if Physical Settlement applies to such conversion) or as of the close of business on the last Trading Day of the relevant Observation Period (if Combination Settlement applies to such conversion), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional Common Share upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Common Share issuable upon conversion based on the Daily VWAP for the relevant Conversion Date, in the case of Physical Settlement, or based on the Daily VWAP for the last Trading Day of the relevant Observation Period, in the case of Combination Settlement. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be issuable upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Sources: Indenture (INFINERA Corp)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 13.0214.02, Section 13.03(b14.03(b) and Section 13.07(a14.07(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying or delivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Physical Settlement”), ) or a combination of cash and shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Combination Settlement”), at its election, as set forth in this Section 13.02, subject to the requirements of Section 13.0714.02.
(i) All conversions for which the relevant Conversion Date occurs during after the Company’s issuance of a Notice of Redemption Period with respect to the Notes and prior to the related Redemption Date shall be settled using the same Settlement Methodsettlement method, and all conversions for which the relevant Conversion Date occurs on or after December 1November 15, 2023 2026, shall be settled using the same Settlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs during after the Company’s issuance of a Notice of Redemption Period with respect to the Notes but prior to the related Redemption Date, and any conversions for which the relevant Conversion Date occurs on or after December 1November 15, 20232026, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates.
(iii) If, in respect of any Conversion Date (or any conversion conversions for which the relevant Conversion Date occurs during after the Company’s issuance of a Notice of Redemption Period with respect to the Notes and prior to the related Redemption Date, or for which the relevant Conversion Date occurs on or after December 1November 15, 20232026), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company Company, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions of any Notes for which the relevant Conversion Date occurs (Ax) during after the date of issuance of a Notice of Redemption Periodwith respect to the Notes and prior to the related Redemption Date, in the applicable such Notice of Redemption Notice or (By) on or after December 1November 15, 20232026, no later than the close of business on the Business Day immediately preceding December 1November 15, 20232026). If the Company does not elect a Settlement Method with respect to any conversion prior to the deadline set forth in the immediately preceding sentence, then the Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to any conversion on such Conversion Date or during such period, and the Company shall be deemed to have elected the Default Combination Settlement Method in respect of such conversionits Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice, if provided, Notice shall specify the relevant Settlement Method and, and in the case of an election of Combination Settlement, the applicable relevant Settlement Notice shall indicate the Specified Dollar AmountAmount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. For the avoidance of doubt, the Company’s failure to so select a Settlement Method or Specified Dollar Amount when so permitted shall not constitute a Default or Event of Default under this Indenture or the Notes. By notice to the all Holders, the Company may change may, prior to November 15, 2026, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Default Notes through Combination Settlement Method to any permitted Settlement Method, except it may not change the Default Settlement Method during any Redemption Period (in respect with a Specified Dollar Amount per $1,000 principal amount of Notes converted with a of $1,000 for all Conversion Date Dates occurring during subsequent to delivery of such Redemption Period) or on or after December 1, 2023 (in respect of Notes converted with a Conversion Date that occurs on or after December 1, 2023)notice.
(iv) The cash, shares of Common Shares Stock or combination of cash and shares of Common Shares Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows follows:
(A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted:
(A) if Physical Settlement applies to such conversion, converted a number of shares of Common Shares Stock equal to the Conversion Rate in effect on the Conversion Date for such conversionDate;
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement applies to such conversionSettlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 25 40 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement applies to such conversionSettlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 25 40 consecutive Trading Days during the related Observation Period.
(v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Share, if anyStock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the sameDaily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 13.02(e14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the Applicable Procedures applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Shares Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 13 14 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 14.0215.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 13.03(b14.03(b) and Section 13.07(a14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement applies(provided that, with respect to any Conversion Date following the Regular Record Date immediately preceding the Maturity Date where Physical Settlement applies to the related conversion, the Company shall settle any such conversion on the Maturity Date), or on the second Business Day immediately following the last Trading Day of the Observation Period, if in the case of any other Settlement Method appliesMethod. If any shares of Common Shares Stock are due to a converting Holder, the Company shall issue or cause to be issued, and deliver (or otherwise cause to be deliveredif applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of shares of Common Shares Stock to which such Holder shall be entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Shares Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Shares Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 13.0414.04, no adjustment shall be made for dividends on any shares of Common Shares Stock issued upon the conversion of any Note as provided in this Article 1314.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below in this Section 13.02(h), and the Company will not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notesbelow. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common SharesStock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided, however, provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, Date shall receive the full interest payment due on the Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date.
(i) The Person in whose name any the shares of Common Shares Stock shall be issuable upon conversion shall be treated as a shareholder stockholder of record of such shares as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement applies to such conversionSettlement) or as of the close of business on the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement applies to such conversionSettlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional share of Common Share Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Share Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date, Date (in the case of Physical Settlement, ) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period, Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be issuable issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 13.02Section 14.02, Section 13.03(bSection 14.03(b) and Section 13.07(aSection 14.07(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying pay or deliveringdeliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with Section 13.02(jsubsection (j) of this Section 14.02 (“Physical Settlement”), ) or a combination of cash and shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with Section 13.02(jsubsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 13.02, subject to the requirements of Section 13.07Section 14.02.
(i) All conversions for which the relevant Conversion Date occurs during after the Company’s issuance of a Redemption Period shall be settled using Notice with respect to the same Settlement MethodNotes and prior to the related Redemption Date, and all conversions for which the relevant Conversion Date occurs on or after December June 1, 2023 2027 shall be settled using the same Settlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs during after the Company’s issuance of a Redemption Period Notice with respect to the Notes but prior to the related Redemption Date and any conversions for which the relevant Conversion Date occurs on or after December June 1, 20232027, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates.
(iii) If, in respect of any Conversion Date (or any conversion for which one of the relevant Conversion Date occurs during a Redemption Period on or after December 1periods described in the third immediately succeeding set of parentheses, 2023as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company shall deliver such Settlement Notice to converting Holders (with a copy to the Trustee and Conversion Agent) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions of any Notes for which the relevant Conversion Date occurs (Ax) during after the date of issuance of a Redemption PeriodNotice with respect to the Notes and prior to the related Redemption Date, in the applicable such Redemption Notice or Notice, (By) on or after December June 1, 20232027, no later than the close of business on the Business Day immediately preceding December June 1, 20232027 or (z) subsequent to delivery of a notice to irrevocably elect Combination Settlement, with a certain Specified Dollar Amount or a Minimum Specified Amount per $1,000 principal amount of Notes to apply pursuant to Section 14.02(a)(vi), as described in Section 14.02(a)(vi)). If the Company does not elect a Settlement Method with respect to any conversion prior to the deadline set forth in the immediately preceding sentence, then the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected the Default Combination Settlement Method in respect of such conversionits Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice, if provided, Notice shall specify the relevant Settlement Method and, and in the case of an election of Combination Settlement, the applicable relevant Settlement Notice shall indicate the Specified Dollar AmountAmount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. For the avoidance of doubt, the Company’s failure to so select a Settlement Method or Specified Dollar Amount when so permitted shall not constitute a Default or Event of Default under this Indenture or the Notes. By notice to the Holders, the Company may change the Default Settlement Method to any permitted Settlement Method, except it may not change the Default Settlement Method during any Redemption Period (in respect of Notes converted with a Conversion Date occurring during such Redemption Period) or on or after December 1, 2023 (in respect of Notes converted with a Conversion Date that occurs on or after December 1, 2023).
(iv) The cash, shares of Common Shares Stock or combination of cash and shares of Common Shares Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows follows:
(A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted:
(A) if Physical Settlement applies to such conversion, converted a number of shares of Common Shares Stock equal to the Conversion Rate in effect on the Conversion Date for such conversionDate;
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement applies to such conversionSettlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 25 40 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement applies to such conversionSettlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 25 40 consecutive Trading Days during the related Observation Period.
(v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion ValuesValues (and in any event no later than one Business Day following the last day of the relevant Observation Period), as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Share, if anyStock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the sameDaily Settlement Amounts or the Daily Conversion Values, as the case may be, the amount of cash payable in lieu of delivering fractional shares of Common Stock, and the related calculation(s) thereof in reasonable detail or in such detail as requested by the Depositary. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(vi) By written notice to all Holders (with a copy to the Trustee and the Conversion Agent), the Company may, prior to June 1, 2027, at its option, elect to irrevocably fix the Settlement Method to any Settlement Method that the Company is then permitted to elect, including Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 or with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above a specific amount (the “Minimum Specified Amount”) set forth in such election notice. If the Company irrevocably elects Combination Settlement with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above a specific amount, the Company shall send written notice to Holders converting their Notes, the Trustee and the Conversion Agent of such Specified Dollar Amount no later than the relevant deadline for election of a Settlement Method as described in Section 14.02(a)(iii), or, if the Company does not timely notify Holders, such Specified Dollar Amount shall be the Minimum Specified Amount set forth in the election notice, unless no Minimum Specified Amount was set forth in the election notice, in which case such Specified Dollar Amount shall be $1,000 per $1,000 principal amount of Notes. The irrevocable election shall apply to all conversions on Conversion Dates occurring subsequent to delivery of such notice; provided that no such election will affect any Settlement Method theretofore elected (or deemed to be elected) with respect to any Note. For the avoidance of doubt, such an irrevocable election, if made, shall be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(i). However, the Company may nonetheless choose to execute such an amendment at its option. If the Company irrevocably fixes the Settlement Method pursuant to this Section 14.02(a)(vi), then, concurrently with providing written notice to Holders of such election, the Company shall either post the fixed Settlement Method on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission.
(b) Subject to Section 13.02(eSection 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the Applicable Procedures applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h) Section 14.02(h), provided that converting a beneficial interest in a Global Note in compliance with the applicable procedures of the Depositary is irrevocable unless the Company, in its sole and absolute discretion, agrees to permit the owner of the beneficial interest to withdraw such conversion and such withdrawal is reasonably feasible pursuant to the applicable procedures of the Depositary and (ii) in the case of a Physical Note (or a Global Note not processed through the Depositary)
(1) complete, manually sign and deliver an irrevocable notice (unless the Company, in its sole and absolute discretion, agrees to permit the owner of the Physical Note to withdraw such conversion) to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Shares Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(hSection 14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 13 Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered for conversion by a Holder thereof if such Holder H▇▇▇▇▇ has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 14.02Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b(b) above. Except as set forth in Section 13.03(bSection 14.03(b) and Section 13.07(aSection 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement appliesSettlement, or on the second Business Day immediately following the last Trading Day of the Observation Period, if in the case of any other Settlement Method appliesMethod. If any shares of Common Shares Stock are due to a converting Holder, the Company shall issue or cause to be issued, and deliver (or otherwise cause to be deliveredif applicable) to the Conversion Agent or to such converting Holder, or such Holder’s nominee or nominees, the full number of shares of Common Shares Stock to which such Holder shall be entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Shares Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Shares Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 13.04Section 14.04, no adjustment shall be made for dividends on any shares of Common Shares Stock issued upon the conversion of any Note as provided in this Article 13Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below in this Section 13.02(h), and the Company will not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notesbelow. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common SharesStock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided, however, provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, Date shall receive the full interest payment due on the Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date.
(i) The Person in whose name any Common Shares shall be issuable upon conversion shall be treated as a shareholder of record of such shares as of the close of business on the relevant Conversion Date (if Physical Settlement applies to such conversion) or as of the close of business on the last Trading Day of the relevant Observation Period (if Combination Settlement applies to such conversion), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional Common Share upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Common Share issuable upon conversion based on the Daily VWAP for the relevant Conversion Date, in the case of Physical Settlement, or based on the Daily VWAP for the last Trading Day of the relevant Observation Period, in the case of Combination Settlement. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be issuable upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.whe
Appears in 1 contract
Sources: Indenture (Assertio Holdings, Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 13.0214.02, Section 13.03(b14.03(b) and Section 13.07(a14.07(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying pay or deliveringdeliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Physical Settlement”), ) or a combination of cash and shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Combination Settlement”), at its election, as set forth in this Section 13.02, subject to the requirements of Section 13.0714.02.
(i) All conversions for which the relevant Conversion Date occurs during after the Company’s issuance of a Redemption Period shall be settled using Notice with respect to the same Settlement MethodNotes and prior to the related Redemption Date, and all conversions for which the relevant Conversion Date occurs on or after December July 1, 2023 2029 shall be settled using the same Settlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs during after the Company’s issuance of a Redemption Period Notice with respect to the Notes but prior to the related Redemption Date, and any conversions for which the relevant Conversion Date occurs on or after December July 1, 20232029, the Company shall use the same Settlement Method for all conversions with occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with occurring on different Conversion Dates.
(iii) If, in respect of any Conversion Date (or any conversion for which one of the relevant Conversion Date occurs during a Redemption Period on or after December 1periods described in the fourth immediately succeeding set of parentheses, 2023as the case may be), the Company elects to a Settlement Method, the Company shall deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be)) in writing to converting Holders, the Company shall deliver such Settlement Notice to converting Holders Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions of any Notes for which the relevant Conversion Date occurs (Ax) during after the date of issuance of a Redemption Period, in Notice with respect to the applicable Redemption Notice or (B) on or after December 1, 2023, no later than Notes and prior to the close of business on the Business second Scheduled Trading Day immediately preceding December the related Redemption Date, in such Redemption Notice, or (y) on or after July 1, 20232029, no later than July 1, 2029). Delivery of such Settlement Notice is irrevocable. If the Company does not elect a Settlement Method with respect to any conversion prior to the deadline set forth in the immediately preceding sentence, then the Company shall no longer have the right to elect Cash Settlement or Physical Settlement for such conversion and the Company shall be deemed to have elected the Default Combination Settlement Method in respect of such conversionits Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice, if provided, Notice shall specify the relevant Settlement Method and, and in the case of an election of Combination Settlement, the applicable relevant Settlement Notice shall indicate the Specified Dollar AmountAmount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. For If the avoidance Company calls any Notes for redemption pursuant to Article 16, and the related Redemption Date is on or after July 1, 2029 (x) if the date of doubt, the Company’s failure relevant Redemption Notice occurs prior to so select the date the Company elects (or is deemed to have elected) a Settlement Method or Specified Dollar Amount when so permitted shall not constitute a Default or Event of Default under this Indenture or the Notes. By notice to the Holders, the Company may change the Default Settlement Method to any permitted Settlement Method, except it may not change the Default Settlement Method during any Redemption Period (in respect of Notes converted all conversions with a Conversion Date occurring during such Redemption Period) or on or after December July 1, 2023 (2029, then, in respect of Notes converted all conversions with a Conversion Date occurring on or after July 1, 2029, the Company must elect the Settlement Method that the Company elected (or was deemed to have elected) in such Redemption Notice and (y) if the date of such Redemption Notice occurs on or after December the date the Company elects (or is deemed to have elected) a Settlement Method in respect of all conversions with a Conversion Date occurring on or after July 1, 2023)2029, then, the Company must elect in such Redemption Notice the Settlement Method that the Company elected (or was deemed to have elected) in respect of all conversions with a Conversion Date occurring on or after July 1, 2029.
(iv) The cash, shares of Common Shares Stock or combination of cash and shares of Common Shares Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows follows:
(A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted:
(A) if Physical Settlement applies to such conversion, converted a number of shares of Common Shares Stock equal to the Conversion Rate in effect on the Conversion Date for such conversion(plus cash in lieu of any fractional share);
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement applies to such conversionSettlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 25 20 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement applies to such conversionSettlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 25 20 consecutive Trading Days during the related Observation PeriodPeriod (plus cash in lieu of any fractional share).
(v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common ShareStock, if anyand in any event within one (1) Business Day following the last day of the Observation Period, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) in writing of its determination of the sameDaily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock and the calculation thereof in reasonable detail or in such detail as requested by the Depositary. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(vi) At any time prior to July 1, 2029, the Company may irrevocably elect to satisfy its Conversion Obligation with respect to the Notes to be converted after the date of such election by delivering cash up to the aggregate principal amount of Notes to be converted, and shares of the Common Stock, cash or a combination thereof in respect of the remainder, if any, of its Conversion Obligation. Upon making such election, the Company shall promptly (x) provide written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) and (y) issue a report on Form 8-K or press release or publish on its website to announce that the Company has made such an election.
(b) Subject to Section 13.02(e14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the Applicable Procedures procedures of the Depositary in effect at that time (any instruction to convert transmitted to the Depositary shall be irrevocable) and, if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h) and/or all transfer or similar taxes as set forth in Section 14.02(e) and (ii) in the case of a Physical Note or Global Notes not approved for processing through the Depositary: (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Shares Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and documents, (4) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h) and (5) if required by Section 14.02(e), pay any transfer or similar taxes. The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 13 on 14 no more than one (1) Business Day after the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered for conversion by a Holder thereof if such Holder ▇▇▇▇▇▇ has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 14.0215.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 13.03(b14.03(b) and Section 13.07(a14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement applies(provided that, with respect to any Conversion Date occurring on or after September 15, 2029, the Company shall pay or deliver, as the case may be, such consideration due upon Physical Settlement in respect of the Conversion Obligation on the Maturity Date), or on the second Business Day immediately following the last Trading Day of the Observation Period, if in the case of any other Settlement Method appliesMethod. If any shares of Common Shares Stock are due to a converting Holder, the Company shall issue or cause to be issued, and deliver (or otherwise cause to be deliveredif applicable) to the Conversion Agent or to such converting Holder, or such Holder’s nominee or nominees, the full number of shares of Common Shares Stock to which such Holder shall be entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any Physical Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Physical Note so surrendered a new Physical Note or Physical Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Physical Note, without payment of any service charge by the converting Physical Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Physical Notes issued upon such conversion being different from the name of the Holder of the old Physical Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Shares Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Shares Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 13.0414.04, no adjustment shall be made for dividends on any shares of Common Shares Stock issued upon the conversion of any Note as provided in this Article 1314.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below in this Section 13.02(h), and the Company will shall not be required to adjust the Conversion Rate for any accrued and unpaid interest on any converted Notesinterest. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common SharesStock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so convertedconverted on the corresponding Interest Payment Date; provided, however, provided that no such payment shall be required (1) for conversions of Notes following the close of business on the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business second Scheduled Trading Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted AmountsAmounts or Additional Interest, if any Defaulted Amounts or Additional Interest exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, Date shall receive the full interest payment due on the Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date.
(i) The Person in whose name any the shares of Common Shares Stock shall be issuable upon conversion shall be treated as a shareholder of record of such shares as of the close of business on the relevant Conversion Date (if Physical Settlement applies to such conversion) or as of the close of business on the last Trading Day of the relevant Observation Period (if Combination Settlement applies to such conversion), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional Common Share upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Common Share issuable upon conversion based on the Daily VWAP for the relevant Conversion Date, in the case of Physical Settlement, or based on the Daily VWAP for the last Trading Day of the relevant Observation Period, in the case of Combination Settlement. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be issuable upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.issu
Appears in 1 contract
Sources: Indenture (Upstart Holdings, Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 13.0214.02, Section 13.03(b14.03(b) and Section 13.07(a14.07(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying or delivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Physical Settlement”), ) or a combination of cash and shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Combination Settlement”), at its election, as set forth in this Section 13.02, subject to the requirements of Section 13.0714.02.
(i) All conversions for which the relevant Conversion Date occurs occurring (x) on or after March 15, 2025 or (y) during a Redemption Period shall be settled using the same Settlement Method, and all conversions for which the relevant Conversion Date occurs on or after December 1, 2023 shall be settled using the same Settlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs during a Redemption Period and any conversions for which the relevant Conversion Date occurs on or after December 1March 15, 20232025, the Company shall use the same Settlement Method for all conversions with occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with that occur on different Conversion Dates.
(iii) If, in respect of any Conversion Date (or any conversion for which one of the relevant Conversion Date occurs during a Redemption Period on or after December 1periods described in the fourth immediately succeeding set of parentheses, 2023as the case may be), the Company elects to a Settlement Method, the Company shall deliver a written notice (the “Settlement Notice”) of the relevant Settlement Method so elected in respect of such Conversion Date (or such period, as the case may be)) to converting Holders, the Company shall deliver such Settlement Notice to converting Holders Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions of any Notes for which the relevant Conversion Date occurs occurring (Ax) during a Redemption Period, in the applicable such Redemption Notice Notice, or (By) on or after December 1March 15, 20232025, no later than the close of business on the Business Day immediately preceding December 1March 15, 20232025). If the Company does not timely elect a Settlement Method with respect to any conversion prior to the deadline set forth in the immediately preceding sentence, then the Company shall no longer have the right to elect Cash Settlement or Physical Settlement for such conversion or during such period and the Company shall be deemed to have elected the Default Combination Settlement Method in respect of such conversionits Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice, if provided, Notice shall specify the relevant Settlement Method and, and in the case of an election of Combination Settlement, the applicable relevant Settlement Notice shall indicate the Specified Dollar AmountAmount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. For the avoidance of doubt, the Company’s failure to so select a Settlement Method or Specified Dollar Amount when so permitted shall not constitute a Default or Event of Default under this Indenture or the Notes. By notice to the Holders, the Company may change the Default Settlement Method to any permitted Settlement Method, except it may not change the Default Settlement Method during any Redemption Period (in respect of Notes converted with a Conversion Date occurring during such Redemption Period) or on or after December 1, 2023 (in respect of Notes converted with a Conversion Date that occurs on or after December 1, 2023).
(iv) The cash, shares of Common Shares Stock or combination of cash and shares of Common Shares Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows follows:
(A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted:
(A) if Physical Settlement applies to such conversion, converted a number of shares of Common Shares Stock equal to the Conversion Rate in effect on the Conversion Date for such conversionDate;
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement applies to such conversionSettlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 25 40 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement applies to such conversionSettlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 25 40 consecutive Trading Days during the related Observation Period.
(v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Share, if anyStock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the sameDaily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 13.02(e14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the Applicable Procedures procedures of the Depositary in effect at that time for converting a beneficial interest in a Global Note and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h) (and, if required, pay all transfer or similar taxes, if any, as set forth in Section 14.02(d) and Section 14.02(e)) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Shares Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h). The Trustee (and and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 13 14 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 14.0215.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 13.03(b14.03(b) and Section 13.07(a14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement appliesSettlement, or on the second Business Day immediately following the last Trading Day of the relevant Observation Period, if in the case of any other Settlement Method appliesMethod; provided that, with respect to any Conversion Date occurring during a Redemption Period or on or after March 15, 2025, (x) the Company will settle any such conversion for which Physical Settlement is applicable on the relevant Redemption Date or the Maturity Date, as applicable and (y) the Company will settle any such conversion for which Cash Settlement or Combination Settlement is applicable on the second Business Day immediately following the last Trading Day of the relevant Observation Period). If any shares of Common Shares Stock are due to a converting HolderHolders, the Company shall issue and deliver (or otherwise cause to be delivered) to the Conversion Agent or issued, and deliver to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common Shares Stock to which such Holder shall be entitled, in book-entry format through the Depositary, entitled in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax or other similar governmental charge due on the issue any issuance of any shares of Common Shares Stock upon conversion, unless the tax is due because the Holder requests any such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Shares Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 13.0414.04, no adjustment shall be made for dividends on any shares of Common Shares Stock issued upon the conversion of any Note as provided in this Article 1314.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below in this Section 13.02(h), and the Company will not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notesbelow. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not includingexcluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not includingexcluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common SharesStock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided, however, provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following succeeding the corresponding Interest Payment Date; (3) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amountsoverdue interest, if any Defaulted Amounts overdue interest exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, Date shall receive the full interest payment due on the Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date.
(i) The Person in whose name the certificate for any shares of Common Shares Stock delivered upon conversion is registered shall be issuable upon conversion shall deemed to be treated as a shareholder the holder of record of such shares of Common Stock as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement applies to such conversionSettlement) or as of the close of business on the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement applies to such conversionSettlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional share of Common Share Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Share Stock issuable upon conversion based on the Daily VWAP for on the relevant Conversion Date, Date (in the case of Physical Settlement, ) or based on the Daily VWAP for on the last Trading Day of the relevant Observation Period, Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be issuable issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Sources: Indenture (Coupa Software Inc)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Except as provided in Section 13.02, Section 13.03(b14.03(b) and Section 13.07(a14.07(a), upon conversion of any Note, on the second Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall satisfy its Conversion Obligation by paying or delivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (a “Cash Settlement”)Settlement Amount” equal to the sum of the Daily Settlement Amounts for each of the 40 Trading Days during the relevant Observation Period for such Note, Common Shares, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with Section 13.02(jsubsection (j) (“Physical Settlement”), or a combination of cash and Common Shares, together, if applicable, with cash in lieu of delivering any fractional Common Share in accordance with Section 13.02(j) (“Combination Settlement”), at its election, as set forth in this Section 13.02, subject to the requirements of Section 13.0714.02.
(i) All conversions of Called Notes for which the relevant Conversion Date occurs during a the related Redemption Period shall be settled using the same Settlement MethodPeriod, and all conversions for which the relevant Conversion Date occurs on or after December April 1, 2023 2031, shall be settled using the same Settlement Methodforms and amounts of consideration.
(ii) Except for any conversions of Called Notes for which the relevant Conversion Date occurs during a the related Redemption Period Period, and any conversions for which the relevant Conversion Date occurs on or after December April 1, 20232031, the Company shall use the same Settlement Method forms and amounts of consideration for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method forms and amounts of consideration with respect to conversions with different Conversion Dates.
(iii) If, in respect of any Conversion Date (or any conversion conversions of Called Notes for which the relevant Conversion Date occurs during a the related Redemption Period or any conversions for which the relevant Conversion Date occurs on or after December April 1, 20232031), the Company elects to deliver settle all or a notice (the “Settlement Notice”) portion of its Conversion Obligation in excess of the relevant Settlement Method principal portion of the Notes being converted in cash in respect of such Conversion Date (or such period, as the case may be), the Company shall deliver such Settlement Notice to inform converting Holders through (and upon a written request to) the Trustee of such election (the “Settlement Notice”) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of (A) any conversions of any Called Notes for which the relevant Conversion Date occurs (A) during a the related Redemption Period, in the applicable related Notice of Redemption Notice or (B) any conversions of Notes for which the relevant Conversion Date occurs on or after December April 1, 20232031, no later than the close of business on the Business Day immediately preceding December April 1, 20232031) and the Company shall indicate in such Settlement Notice the percentage of the Conversion Obligation in excess of the principal portion of the Notes being converted that shall be paid in cash (the “Cash Percentage”). If the Company does not elect a Settlement Method with respect to any conversion Cash Percentage prior to the deadline set forth in the immediately preceding sentence, then the Company shall no longer have the right to elect a Cash Percentage with respect to any conversion on such Conversion Date or during such period, and the Company shall be deemed to have elected the Default Settlement Method in a Cash Percentage of 0% with respect of to such conversion. Such Settlement Notice, if provided, shall specify the relevant Settlement Method and, in the case of Combination Settlement, the applicable Specified Dollar Amount. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. For the avoidance of doubt, the Company’s failure to so select a Settlement Method or Specified Dollar Amount when so permitted shall not constitute a Default or Event of Default under this Indenture or the Notes. By notice to the Holders, the Company may change the Default Settlement Method to any permitted Settlement Method, except it may not change the Default Settlement Method during any Redemption Period (in respect of Notes converted with a Conversion Date occurring during such Redemption Period) or on or after December 1, 2023 (in respect of Notes converted with a Conversion Date that occurs on or after December 1, 2023).
(iv) The cash, Common Shares or combination of cash and Common Shares in respect of any conversion of Notes (the “Daily Settlement Amount”) shall be computed as follows in respect of each $1,000 principal amount of Notes being converted:
(A) if Physical Settlement applies to such conversion, a number of Common Shares equal to the Conversion Rate in effect on the Conversion Date for such conversion;
(B) if Cash Settlement applies to such conversionAmounts, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 25 consecutive Trading Days during the related Observation Period; and
(C) if Combination Settlement applies to such conversion, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 25 consecutive Trading Days during the related Observation Period.
(v) The Daily Net Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts, the Daily Net Settlement Amounts or (if applicable) and the Daily Conversion Values, as the case may be, Values and the amount of cash payable in lieu of delivering any fractional share of Common Share, if anyStock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) in writing of the sameDaily Settlement Amounts, the Daily Net Settlement Amounts (if applicable) and the Daily Conversion Values and the amount of cash payable in lieu of delivering any fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 13.02(e14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the Applicable Procedures applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Shares Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 13 14 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Holder ▇▇▇▇▇▇ has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 14.0215.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 13.03(b) and Section 13.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if Physical Settlement applies, or on the second Business Day immediately following the last Trading Day of the Observation Period, if any other Settlement Method applies. If any shares of Common Shares Stock are due to a converting Holder, the Company shall issue or cause to be issued, and deliver (or otherwise cause to be deliveredif applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of shares of Common Shares Stock to which such Holder shall be entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax or other similar governmental charge due on the issue of any shares of Common Shares Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Shares Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 13.0414.04, no adjustment shall be made for dividends on any shares of Common Shares Stock issued upon the conversion of any Note as provided in this Article 1314.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment or shares of Common Stock for accrued and unpaid interest, if any, except as set forth below in this Section 13.02(h), and the Company will not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notesbelow. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and Common SharesNotes, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the such corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided, however, provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amountsoverdue interest, if any Defaulted Amounts overdue interest exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, Date shall receive the full interest payment due on the Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date.
(i) The Person in whose name any shares of Common Shares Stock shall be issuable upon conversion shall be treated as a shareholder stockholder of record of such shares as of the close of business on the relevant Conversion Date (if Physical Settlement applies to such conversion) or as of the close of business on the last Trading Day of the relevant Observation Period (if Combination Settlement applies to such conversion), as the case may bePeriod. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional share of Common Share Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Share Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date, in the case of Physical Settlement, or based on the Daily VWAP for the last Trading Day of the relevant Observation Period, in the case of Combination Settlement. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares shares, if any, that shall be issuable issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares of Common Stock remaining after such computation shall be paid in cash.
Appears in 1 contract
Sources: Indenture (Array Technologies, Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 13.0214.02, Section 13.03(b14.03(b) and Section 13.07(a14.07(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying or delivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Physical Settlement”), ) or a combination of cash and shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Combination Settlement”), at its election, as set forth in this Section 13.02, subject to the requirements of Section 13.0714.02.
(i) All conversions of Called Notes for which the relevant Conversion Date occurs during a the related Redemption Period shall be settled using the same Settlement MethodPeriod, and all conversions for which the relevant Conversion Date occurs on or after December 1June 15, 2023 2030, shall be settled using the same Settlement Method.
(ii) Except for any conversions of Called Notes for which the relevant Conversion Date occurs during a the related Redemption Period Period, and any conversions for which the relevant Conversion Date occurs on or after December 1June 15, 20232030, and except to the extent the Company has irrevocably elected Physical Settlement pursuant to Section 14.01(b)(ii) in a notice as described in such Section or previously made an irrevocable election with respect to all subsequent conversions of Notes in accordance with Section 14.02(a)(iii), the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates.
(iii) If, in respect of any Conversion Date (or any conversion conversions of Called Notes for which the relevant Conversion Date occurs during a the related Redemption Period Period, or any conversions for which the relevant Conversion Date occurs on or after December 1June 15, 20232030 or for which the Company has irrevocably elected Physical Settlement pursuant to Section 14.01(b)(ii) in a notice as described in such Section), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company shall deliver such Settlement Notice to converting Holders Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of (A) any conversions of any Called Notes for which the relevant Conversion Date occurs (A) during a the related Redemption Period, in the applicable Redemption related Notice or of Redemption, (B) any conversions of Notes for which the relevant Conversion Date occurs on or after December 1June 15, 20232030, no later than June 15, 2030 or (C) any conversions for which the close of business on the Business Day immediately preceding December 1Company has irrevocably elected Physical Settlement pursuant to Section 14.01(b)(ii), 2023in a notice as described in such Section). If the Company does not elect a Settlement Method with respect to any conversion prior to the deadline set forth in the immediately preceding sentence, then the Company shall no longer have the right to elect a Settlement Method with respect to any conversion on such Conversion Date or during such period, and the Company shall be deemed to have elected the Default Settlement Method in with respect of to such conversion. Such Settlement Notice, if provided, Notice shall specify the relevant Settlement Method and, and in the case of an election of Combination Settlement, the applicable relevant Settlement Notice shall indicate the Specified Dollar AmountAmount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement (or is deemed to have elected Combination Settlement) in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. For the avoidance of doubt, the Company’s failure to so select timely elect a Settlement Method or specify as applicable a Specified Dollar Amount when so permitted shall not constitute a Default under this Indenture. By notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, from time to time, change the Default Settlement Method prior to June 15, 2030. By notice to all Holders, the Company may, prior to June 15, 2030, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through any Settlement Method that the Company is then permitted to elect, including Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 or Event with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above a specific amount set forth in such election notice. If the Company changes the Default under Settlement Method or the Company irrevocably elects to fix the Settlement Method, in either case, to Combination Settlement with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above a specific amount, the Company will, after the date of such change or election, as the case may be, inform Holders converting their Notes, the Trustee and the Conversion Agent (if other than the Trustee) of such Specified Dollar Amount no later than the relevant deadline for election of a specified Settlement Method as set forth in the immediately preceding paragraph, or, if the Company does not timely notify Holders, such Specified Dollar Amount will be the specific amount set forth in the election notice or, if no specific amount was set forth in the election notice, such Specified Dollar Amount will be $1,000 per $1,000 principal amount of Notes. A change in the Default Settlement Method or an irrevocable election shall apply for all conversions of Notes with Conversion Dates occurring subsequent to delivery of such notice; provided, however, that no such change or election will affect any Settlement Method theretofore elected (or deemed to be elected) with respect to any Note. For the avoidance of doubt, such an irrevocable election, if made by the Company, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(m). By notice to the HoldersHowever, the Company may change nonetheless choose to execute such an amendment at its option. If the Company changes the Default Settlement Method or if the Company irrevocably fixes the Settlement Method pursuant to any permitted Settlement Methodthis paragraph, except it may not then, concurrently with providing notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee) of such change or election, the Company shall either post the Default Settlement Method during or fixed Settlement Method, as the case may be, on its website or disclose the same in a current report on Form 8-K (or any Redemption Period (in respect of Notes converted successor form) that is filed with a Conversion Date occurring during such Redemption Period) or on or after December 1, 2023 (in respect of Notes converted with a Conversion Date that occurs on or after December 1, 2023)the Commission.
(iv) The cash, shares of Common Shares Stock or combination of cash and shares of Common Shares Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows follows:
(A) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted:
(A) if Physical Settlement applies to such conversion, converted a number of shares of Common Shares Stock equal to the Conversion Rate in effect on the Conversion Date for such conversionDate;
(B) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement applies to such conversionSettlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 25 40 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement applies to such conversionSettlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 25 40 consecutive Trading Days during the related Observation Period.
(v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or (if applicable), the Daily Conversion Values, as the case may be, Values (if applicable) and the amount of cash payable in lieu of delivering any fractional share of Common Share, if anyStock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the sameDaily Settlement Amounts (if applicable), the Daily Conversion Values (if applicable) and the amount of cash payable in lieu of delivering any fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 13.02(e14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the Applicable Procedures applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedure procedures of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Shares Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 13 14 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Holder ▇▇▇▇▇▇ has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 14.0215.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 13.03(b14.03(b) and Section 13.07(a14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement applies(provided that, with respect to any Conversion Date following the Regular Record Date immediately preceding the Maturity Date where Physical Settlement applies to the related conversion, the Company shall settle any such conversion on the Maturity Date), or on the second Business Day immediately following the last Trading Day of the Observation Period, if in the case of any other Settlement Method appliesMethod. If any shares of Common Shares Stock are due to a converting Holder, the Company shall issue or cause to be issued, and deliver (or otherwise cause to be deliveredif applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of shares of Common Shares Stock to which such Holder shall be entitled, in certificated form or book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Shares Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Shares Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 13.0414.04, no adjustment shall be made for dividends on any shares of Common Shares Stock issued upon the conversion of any Note as provided in this Article 1314.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below in this Section 13.02(h), and the Company will not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notesbelow. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common SharesStock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of any interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided, however, that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, shall receive the full interest payment due on Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date.
(i) The Person in whose name any Common Shares shall be issuable upon conversion shall be treated as a shareholder of record of such shares as of the close of business on the relevant Conversion Date (if Physical Settlement applies to such conversion) or as of the close of business on the last Trading Day of the relevant Observation Period (if Combination Settlement applies to such conversion), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional Common Share upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Common Share issuable upon conversion based on the Daily VWAP for the relevant Conversion Date, in the case of Physical Settlement, or based on the Daily VWAP for the last Trading Day of the relevant Observation Period, in the case of Combination Settlement. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be issuable upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Sources: Indenture (Enovix Corp)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 13.02Section 14.02, Section 13.03(bSection 14.03(b) and Section 13.07(aSection 14.07(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying or delivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with Section 13.02(jsubsection (j) of this Section 14.02 (“Physical Settlement”), ) or a combination of cash and shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with Section 13.02(jsubsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 13.02, subject to the requirements of Section 13.07Section 14.02.
(i) All conversions for which the relevant Conversion Date occurs occurring (x) on or after February 15, 2023 or (y) during a Redemption Period shall be settled using the same Settlement Method, and all conversions for which the relevant Conversion Date occurs on or after December 1, 2023 shall be settled using the same Settlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs (x) on or after February 15, 2023 or (y) during a Redemption Period and any conversions for which the relevant Conversion Date occurs on or after December 1, 2023Period, the Company shall use the same Settlement Method for all conversions with occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with that occur on different Conversion Dates.
(iii) If, in respect of any Conversion Date (or in the case of any conversion for which the relevant Conversion Date occurs conversions occurring (x) during a Redemption Period Period, in such Redemption Notice or (y) on or after December 1February 15, 2023, no later than the close of business on the Business Day immediately preceding February 15, 2023), the Company elects to a Settlement Method, the Company shall deliver a written notice (the “Settlement Notice”) of the relevant Settlement Method so elected in respect of such Conversion Date (or such period, as the case may be), the Company shall deliver such Settlement Notice ) to converting Holders through the Trustee no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions of any Notes for which the relevant Conversion Date occurs occurring (Ax) during a Redemption Period, in the applicable such Redemption Notice or (By) on or after December 1February 15, 2023, no later than the close of business on the Business Day immediately preceding December 1February 15, 2023). If the Company does not timely elect a Settlement Method with respect to any conversion prior to the deadline set forth in the immediately preceding sentence, then the Company shall no longer have the right to elect Cash Settlement or Physical Settlement for such conversion or during such period and the Company shall be deemed to have elected the Default Combination Settlement Method in respect of such conversionits Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice, if provided, Notice shall specify the relevant Settlement Method and, and in the case of an election of Combination Settlement, the applicable relevant Settlement Notice shall indicate the Specified Dollar AmountAmount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. For the avoidance of doubt, the Company’s failure to so select a Settlement Method or Specified Dollar Amount when so permitted shall not constitute a Default or Event of Default under this Indenture or the Notes. By notice to the Holders, the Company may change the Default Settlement Method to any permitted Settlement Method, except it may not change the Default Settlement Method during any Redemption Period (in respect of Notes converted with a Conversion Date occurring during such Redemption Period) or on or after December 1, 2023 (in respect of Notes converted with a Conversion Date that occurs on or after December 1, 2023).
(iv) The cash, shares of Common Shares Stock or combination of cash and shares of Common Shares Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows follows:
(A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted:
(A) if Physical Settlement applies to such conversion, converted a number of shares of Common Shares Stock equal to the Conversion Rate in effect on the Conversion Date for such conversionDate;
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement applies to such conversionSettlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 25 40 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement applies to such conversionSettlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 25 40 consecutive Trading Days during the related Observation Period.
(v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Share, if anyStock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the sameDaily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 13.02(eSection 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the Applicable Procedures procedures of the Depositary in effect at that time for converting a beneficial interest in a Global Note and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(hSection 14.02(h) (and, if required, pay all transfer or similar taxes, if any, as set forth in Section 14.02(d) and Section 14.02(e)) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Shares Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to the interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(hSection 14.02(h). The Trustee (and and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 13 Article 14 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Holder ▇▇▇▇▇▇ has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 14.02Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b(b) above. Except as set forth in Section 13.03(bSection 14.03(b) and Section 13.07(aSection 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement applies(provided that, with respect to any Conversion Date occurring on or after February 15, 2023, the Company shall settle any such conversion on the Maturity Date), or on the second Business Day immediately following the last Trading Day of the relevant Observation Period, if in the case of any other Settlement Method appliesMethod. If any shares of Common Shares Stock are due to a converting HolderHolders, the Company shall issue and deliver (or otherwise cause to be delivered) to the Conversion Agent or issued, and deliver to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common Shares Stock to which such Holder shall be entitled, in book-entry format through the Depositary, entitled in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax or other similar governmental charge due on the issue any issuance of any shares of Common Shares Stock upon conversion, unless the tax is due because the Holder requests any such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Shares Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 13.04Section 14.04, no adjustment shall be made for dividends on any shares of Common Shares Stock issued upon the conversion of any Note as provided in this Article 1314.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below in the fifth sentence of this Section 13.02(h), and the Company will not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notesparagraph. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not includingexcluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not includingexcluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common SharesStock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided, however, provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following succeeding the corresponding Interest Payment Date; (3) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amountsoverdue interest, if any Defaulted Amounts overdue interest exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, Date shall receive the full interest payment due on the Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date.
(i) The Person in whose name the certificate for any shares of Common Shares shall be issuable Stock delivered upon conversion is registered shall be treated as a shareholder stockholder of record of such shares as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement applies to such conversionSettlement) or as of the close of business on the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement applies to such conversionSettlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional share of Common Share Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Share Stock issuable upon conversion based on the Daily VWAP for on the relevant Conversion Date, Date (in the case of Physical Settlement, ) or based on the Daily VWAP for on the last Trading Day of the relevant Observation Period, Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be issuable issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Sources: Indenture (Chegg, Inc)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 13.0214.02, Section 13.03(b14.03(b) and Section 13.07(a14.07(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying pay or deliveringdeliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Physical Settlement”), ) or a combination of cash and shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Combination Settlement”), at its election, as set forth in this Section 13.02, subject to the requirements of Section 13.0714.02.
(i) All conversions for which the relevant Conversion Date occurs during after the Company’s issuance of a Redemption Period shall be settled using Notice with respect to the same Settlement MethodNotes and prior to the related Redemption Date, and all conversions for which the relevant Conversion Date occurs on or after December 1September 15, 2023 shall be settled using the same Settlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs during after the Company’s issuance of a Redemption Period Notice with respect to the Notes but prior to the related Redemption Date, and any conversions for which the relevant Conversion Date occurs on or after December 1September 15, 2023, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates.
(iii) If, in respect of any Conversion Date (or any conversion for which one of the relevant Conversion Date occurs during a Redemption Period on or after December 1periods described in the third immediately succeeding set of parentheses, 2023as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company shall deliver such Settlement Notice to converting Holders Holders, through the Trustee, no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions of any Notes for which the relevant Conversion Date occurs (Ax) during after the date of issuance of a Redemption PeriodNotice with respect to the Notes and prior to the related Redemption Date, in the applicable such Redemption Notice or (By) on or after December 1September 15, 2023, no later than the close of business on the Business Day immediately preceding December 1September 15, 2023). If the Company does not elect a Settlement Method with respect to any conversion prior to the deadline set forth in the immediately preceding sentence, then the Company shall no longer have the right to elect Cash Settlement or Physical Settlement for such conversion or during such period, and the Company shall be deemed to have elected the Default Combination Settlement Method in respect of such conversionits Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice, if provided, Notice shall specify the relevant Settlement Method and, and in the case of an election of Combination Settlement, the applicable relevant Settlement Notice shall indicate the Specified Dollar AmountAmount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. For the avoidance of doubt, the Company’s failure to so select a Settlement Method or Specified Dollar Amount when so permitted shall not constitute a Default or Event of Default under this Indenture or the Notes. By notice to the Holders, the Company may change the Default Settlement Method to any permitted Settlement Method, except it may not change the Default Settlement Method during any Redemption Period (in respect of Notes converted with a Conversion Date occurring during such Redemption Period) or on or after December 1, 2023 (in respect of Notes converted with a Conversion Date that occurs on or after December 1, 2023).
(iv) The cash, shares of Common Shares Stock or combination of cash and shares of Common Shares Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows follows:
(A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted:
(A) if Physical Settlement applies to such conversion, converted a number of shares of Common Shares Stock equal to the Conversion Rate in effect on the Conversion Date for such conversionDate;
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement applies to such conversionSettlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 25 40 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement applies to such conversionSettlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 25 40 consecutive Trading Days during the related Observation Period.
(v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Share, if anyStock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) in writing of the sameDaily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 13.02(e14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the Applicable Procedures procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Shares Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and documents, (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h) and (5) if required, pay all transfer or similar taxes, if any, as set forth in Section 14.02(e). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 13 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be delivered, and no Notes surrendered for conversion by a Holder thereof thereof, if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 14.0215.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 13.03(b14.03(b) and Section 13.07(a14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement appliesSettlement, or on the second Business Day immediately following the last Trading Day of the Observation Period, if in the case of any other Settlement Method appliesMethod. If any shares of Common Shares Stock are due to a converting Holder, the Company shall issue or cause to be issued, and deliver (or otherwise cause to be deliveredif applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of shares of Common Shares Stock to which such Holder shall be entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any Physical Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Physical Note so surrendered a new Physical Note or Physical Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Physical Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Physical Notes issued upon such conversion being different from the name of the Holder of the old Physical Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Shares Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Shares Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 13.0414.04, no adjustment shall be made for dividends on any shares of Common Shares Stock issued upon the conversion of any Note as provided in this Article 1314.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below in this Section 13.02(h), and the Company will not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notesbelow. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common SharesStock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided, however, provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, Redemption Date or Fundamental Change Repurchase Date shall receive the full interest payment due on Maturity the related Interest Payment Date in cash regardless of whether their Notes have been converted following such Regular Record Date.
(i) The Person in whose name any the shares of Common Shares Stock shall be issuable upon conversion shall be treated as a shareholder stockholder of record of such shares as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement applies to such conversionSettlement) or as of the close of business on the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement applies to such conversionSettlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional share of Common Share Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Share Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date, Date (in the case of Physical Settlement, ) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period, Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be issuable issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Sources: Indenture (Benefitfocus,Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 13.0214.02, Section 13.03(b14.03(b) and Section 13.07(a14.07(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying or delivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Physical Settlement”), ) or a combination of cash and shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Combination Settlement”), at its election, as set forth in this Section 13.02, subject to the requirements of Section 13.0714.02.
(i) All conversions for which the relevant Conversion Date occurs during on or after the date of the Company’s issuance of a Notice of Redemption Period with respect to any Notes selected for redemption in respect of such Notice of Redemption and prior to the close of business on the second Business Day before the related Redemption Date shall be settled using the same Settlement Method, and all conversions for which the relevant Conversion Date occurs on or after December November 1, 2023 2032, shall be settled using the same Settlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs during after the date of the Company’s issuance of a Notice of Redemption Period with respect to the Notes but prior to the close of business on the second Business Day before the related Redemption Date with respect to any Notes selected for redemption in respect of such Notice of Redemption, and any conversions for which the relevant Conversion Date occurs on or after December November 1, 20232032, and except to the extent the Company has irrevocably elected Physical Settlement pursuant to Section 14.01(b)(ii) in a notice as described in such Section or previously made an irrevocable election with respect to all subsequent conversions of Notes in accordance with Section 14.02(a)(iii), the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates.
(iii) (A) If, in respect of any Conversion Date (or any conversion conversions for which the relevant Conversion Date occurs during after the Company’s issuance of a Notice of Redemption Period with respect to the Notes but prior to the close of business on the second Business Day before the related Redemption Date with respect to any Notes selected for redemption in respect of such Notice of Redemption, or for which the relevant Conversion Date occurs on or after December November 1, 20232032), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company shall deliver such Settlement Notice to converting Holders Holders, the Trustee and the Conversion Agent no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions of any Notes (x) for which the relevant Conversion Date occurs (A1) during after the date of issuance of a Notice of Redemption Period, in with respect to the applicable Redemption Notice or (B) on or after December 1, 2023, no later than Notes and prior to the close of business on the second Business Day immediately preceding December before the related Redemption Date with respect to any Notes selected for redemption in respect of such Notice of Redemption, in such Notice of Redemption (and, in the case of a partial redemption, in a notice sent on the relevant Redemption Notice Date to all Holders of Notes not called for redemption) or (2) on or after November 1, 20232032, no later than November 1, 2032 or (y) for which the Company has irrevocably selected Physical Settlement pursuant to Section 14.01(b)(ii) in a notice as described in such Section (in each case, the “Settlement Method Election Deadline”). If the Company does not elect a Settlement Method with respect to any conversion prior to the deadline set forth in the immediately preceding sentencesentence with respect to any conversion, then the Company shall be deemed to have elected the Default Settlement Method in with respect of to such conversion. Such Settlement Notice, if provided, Notice shall specify the relevant Settlement Method and, and in the case of an election of Combination Settlement, the applicable relevant Settlement Notice shall indicate the Specified Dollar AmountAmount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. For the avoidance of doubt, the Company’s failure to so select a Settlement Method or Specified Dollar Amount when so permitted shall not constitute a Default or Event of Default under this Indenture or the Notes. By notice to the Holders, the Company may change the Default Settlement Method to any permitted Settlement Method, except it may not change the Default Settlement Method during any Redemption Period (in respect of Notes converted with a Conversion Date occurring during such Redemption Period) or on or after December 1, 2023 (in respect of Notes converted with a Conversion Date that occurs on or after December 1, 2023).
(iv) The cash, Common Shares or combination of cash and Common Shares in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows in respect of each $1,000 principal amount of Notes being converted:
(A) if Physical Settlement applies to such conversion, a number of Common Shares equal to the Conversion Rate in effect on the Conversion Date for such conversion;
(B) if Cash Settlement applies to such conversion, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 25 consecutive Trading Days during the related Observation Period; and
(C) if Combination Settlement applies to such conversion, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 25 consecutive Trading Days during the related Observation Period.
(v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional Common Share, if any, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the same. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 13.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the Applicable Procedures and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any Common Shares to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 13 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 14.02. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 13.03(b) and Section 13.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if Physical Settlement applies, or on the second Business Day immediately following the last Trading Day of the Observation Period, if any other Settlement Method applies. If any Common Shares are due to a converting Holder, the Company shall issue and deliver (or otherwise cause to be delivered) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of Common Shares to which such Holder shall be entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any Common Shares upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the Common Shares being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 13.04, no adjustment shall be made for dividends on any Common Shares issued upon the conversion of any Note as provided in this Article 13.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below in this Section 13.02(h), and the Company will not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and Common Shares, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided, however, that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, shall receive the full interest payment due on Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date.
(i) The Person in whose name any Common Shares shall be issuable upon conversion shall be treated as a shareholder of record of such shares as of the close of business on the relevant Conversion Date (if Physical Settlement applies to such conversion) or as of the close of business on the last Trading Day of the relevant Observation Period (if Combination Settlement applies to such conversion), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional Common Share upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Common Share issuable upon conversion based on the Daily VWAP for the relevant Conversion Date, in the case of Physical Settlement, or based on the Daily VWAP for the last Trading Day of the relevant Observation Period, in the case of Combination Settlement. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be issuable upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Sources: Indenture (BridgeBio Pharma, Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 13.0214.02, Section 13.03(b14.03(b) and Section 13.07(a14.07(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying or delivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, (x) cash up to the aggregate principal amount of the Notes being converted and (“Cash Settlement”), y) cash or shares of Common Shares, together, if applicable, with cash in lieu of delivering any fractional Common Share in accordance with Section 13.02(j) (“Physical Settlement”), Stock or a combination of cash and shares of Common SharesStock, togetherat the Company’s election, in respect of the remainder, if applicableany, with cash of its Conversion Obligation in lieu excess of delivering any fractional Common Share in accordance with Section 13.02(j) (“Combination Settlement”), at its electionthe aggregate principal amount of the Notes being converted, as set forth in this Section 13.02, subject to the requirements of Section 13.0714.02(a)(iii) and 14.02(j).
(i) All conversions for which the relevant Conversion Date occurs during a Redemption Period shall be settled using the same Settlement Methodon or after March 15, 2026, and all conversions for which the relevant Conversion Date occurs on or after December 1during a Redemption Period, 2023 shall be settled using the same Settlement Methodforms and amounts of consideration.
(ii) Except for any conversions for which the relevant Conversion Date occurs during a Redemption Period Period, and any conversions for which the relevant Conversion Date occurs on or after December 1March 15, 20232026, the Company shall use the same Settlement Method forms and amounts of consideration for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method forms and amounts of consideration with respect to conversions with different Conversion Dates. In addition, if the Company calls any Notes for redemption pursuant to Article 16, and the related Redemption Date is on or after March 15, 2026, then the forms and amounts of consideration during the Redemption Period must be the same forms and amounts of consideration that apply to all conversions with a Conversion Date that occurs on or after March 15, 2026.
(iii) If, in respect of any Conversion Date (or any conversion conversions for which the relevant Conversion Date occurs during a Redemption Period Period, or for which the relevant Conversion Date occurs on or after December 1March 15, 20232026), the Company elects to deliver settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cash, the Company shall provide a notice (the “Settlement Notice”) to Holders of the relevant Settlement Method such election in respect of such Conversion Date (or such period, as the case may be), and the Company shall deliver such Settlement Notice to converting Holders in writing (or if the Notes are then in global form through the applicable procedures of the Depositary), the Trustee and the Conversion Agent (if other than the Trustee), no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions of any Notes for which the relevant Conversion Date occurs (Ax) during a Redemption Period, in the applicable Notice of Redemption Notice or (By) on or after December 1March 15, 20232026, no later than the close of business on the Business Day immediately preceding December 1March 15, 20232026) (the “Settlement Method Election Date”). Such Settlement Notice shall indicate the percentage of each share of Common Stock issuable upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”). If the Company does not elect a Settlement Method with respect to any conversion make such an election prior to the deadline set forth in the immediately preceding sentenceSettlement Method Election Date, then the Company shall be deemed no longer have the right to have elected elect a Cash Percentage and the Default Settlement Method Company shall settle its Conversion Obligation paying cash in respect of such conversion. Such Settlement Notice, if provided, shall specify the relevant Settlement Method and, in principal portion of the case Notes being converted and delivering shares of Combination Settlement, the applicable Specified Dollar Amount. If the Company delivers a Settlement Notice electing Combination Settlement Common Stock in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount the remainder, if any, of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. For the avoidance of doubt, the Company’s failure to so select a Settlement Method or Specified Dollar Amount when so permitted shall not constitute a Default or Event Conversion Obligation in excess of Default under this Indenture or the Notes. By notice to aggregate principal portion of the Holders, the Company may change the Default Settlement Method to any permitted Settlement Method, except it may not change the Default Settlement Method during any Redemption Period (in respect of Notes converted with a Conversion Date occurring during such Redemption Period) or on or after December 1, 2023 (in respect of Notes converted with a Conversion Date that occurs on or after December 1, 2023)being converted.
(iv) The cash, shares of Common Shares Stock or combination of cash and shares of Common Shares Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows in respect of each $1,000 principal amount of Notes being converted:
(A) if Physical Settlement applies to such conversion, a number of Common Shares equal to the Conversion Rate in effect on the Conversion Date for such conversion;
(B) if Cash Settlement applies to such conversion, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 25 consecutive Trading Days during the related Observation Period; and
(C) if Combination Settlement applies to such conversion, follows: the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 25 50 consecutive Trading Days during the related Observation Period.
(v) The Daily Settlement Amounts, the Daily Net Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or Amounts, the Daily Net Settlement Amounts, the Daily Conversion Values, as the case may be, Values and the amount of cash payable in lieu of delivering any fractional share of Common Share, if anyStock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the sameDaily Settlement Amounts, the Daily Net Settlement Amounts, the Daily Conversion Values and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 13.02(e14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the Applicable Procedures applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Shares Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documentsdocuments in a form reasonably satisfactory to the Conversion Agent), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents in a form reasonably satisfactory to the Conversion Agent and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 13 14 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 14.0215.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 13.03(b14.03(b) and Section 13.07(a14.07(a), the Company shall pay or and, if applicable, deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if Physical Settlement applies, or on the second Business Day immediately following the last Trading Day of the Observation PeriodPeriod unless such Conversion Date occurs following the regular Record Date immediately preceding the Maturity Date, in which case the Company shall make such payment (and delivery, if any other Settlement Method appliesapplicable) on the Maturity Date. If any shares of Common Shares Stock are due to a converting Holder, the Company shall issue or cause to be issued, and deliver (or otherwise cause to be deliveredif applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of shares of Common Shares Stock to which such Holder shall be entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Shares Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Shares Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 13.0414.04, no adjustment shall be made for dividends on any shares of Common Shares Stock issued upon the conversion of any Note as provided in this Article 1314.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below in this Section 13.02(h), and the Company will not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and Common Shares, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes (to, but not including the corresponding Interest Payment Date) on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so convertedconverted on the corresponding Interest Payment Date (regardless of whether the converting Holder was the Holder of record on such Regular Record Date); provided, however, provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Scheduled Trading Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists exist at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record at the close of business on the Regular Record Date immediately preceding the Maturity Date, Date shall receive the full interest payment due on the Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date.
(i) The Person in whose name any the shares of Common Shares Stock shall be issuable upon conversion shall be treated as a shareholder stockholder of record of such shares as of the close of business on the relevant Conversion Date (if Physical Settlement applies to such conversion) or as of the close of business on the last Trading Day of the relevant Observation Period (if Combination Settlement applies to such conversion), as the case may bePeriod. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional share of Common Share Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Share Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date, in the case of Physical Settlement, or based on the Daily VWAP for the last Trading Day of the relevant Observation Period, in the case of Combination Settlement. For each Note surrendered for conversion, if the Company has elected (a Cash Percentage less than 100% or is deemed if the Company does not deliver a Settlement Notice prior to have elected) Combination Settlementthe Settlement Method Election Date, the full number of shares that shall be issuable issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 13.0214.02, Section 13.03(b14.03(b) and Section 13.07(a14.07(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying pay or deliveringdeliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Physical Settlement”), ) or a combination of cash and shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Combination Settlement”), at its election, as set forth in this Section 13.02, subject to the requirements of Section 13.0714.02.
(i) All (x) conversions for which the relevant Conversion Date occurs during after the Company’s issuance of a Redemption Period Notice with respect to the Notes and prior to the related Redemption Date shall be settled using the same Settlement Method, and (y) all conversions for which the relevant Conversion Date occurs on or after December 1February 15, 2023 2025 shall be settled using the same Settlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs during after the Company’s issuance of a Redemption Period Notice with respect to the Notes but prior to the related Redemption Date, and any conversions for which the relevant Conversion Date occurs on or after December 1February 15, 20232025, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates.
(iii) If, in respect of any Conversion Date (or any conversion for which one of the relevant Conversion Date occurs during a Redemption Period on or after December 1periods described in the third immediately succeeding set of parentheses, 2023as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company shall deliver such Settlement Notice to converting Holders Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions of any Notes for which the relevant Conversion Date occurs (Ax) during after the date of issuance of a Redemption PeriodNotice with respect to the Notes and prior to the related Redemption Date, in the applicable such Redemption Notice or (By) on or after December 1February 15, 20232025, no later than February 15, 2025). Such Settlement Notice shall specify the close relevant Settlement Method and in the case of business on an election of Combination Settlement, the Business Day immediately preceding December 1, 2023relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company does not elect a Settlement Method with respect to any conversion prior to the deadline set forth in the second immediately preceding sentence, then the Company shall be deemed to have elected the Default Settlement Method in respect of such conversion. Such Settlement Notice, if provided, shall specify the relevant Settlement Method and, in the case of Combination Settlement, the applicable Specified Dollar Amountits Conversion Obligation. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a timely notify the converting Holder of the applicable Specified Dollar Amount, then the Specified Dollar Amount for such conversion will be deemed to be $1,000 per $1,000 principal amount of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000Notes. For the avoidance of doubt, the Company’s failure to so select timely elect a Settlement Method or specify the applicable Specified Dollar Amount when so permitted shall not constitute a Default or Event of Default under this Indenture or the Notes. By notice to the Holders, the Company may change the Default Settlement Method to any permitted Settlement Method, except it may not change the Default Settlement Method during any Redemption Period (in respect of Notes converted with a Conversion Date occurring during such Redemption Period) or on or after December 1, 2023 (in respect of Notes converted with a Conversion Date that occurs on or after December 1, 2023)Indenture.
(iv) The cash, shares of Common Shares Stock or combination of cash and shares of Common Shares Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows follows:
(A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted:
(A) if Physical Settlement applies to such conversion, converted a number of shares of Common Shares Stock equal to the Conversion Rate in effect on the Conversion Date for such conversionDate;
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement applies to such conversionSettlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 25 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement applies to such conversionSettlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 25 consecutive Trading Days during the related Observation Period.
(v) The Company may, from time to time, change the Default Settlement Method by sending written notice of the new Default Settlement Method to all Holders, the Trustee and the Conversion Agent (if other than the Trustee). In addition, the Company may, by sending written notice to all Holders, irrevocably fix the Settlement Method to any Settlement Method that the Company is then permitted to elect, which Settlement Method shall apply to all conversions of Notes with a Conversion Date that is after the date the Company sends such written notice. Notwithstanding anything to the contrary in this Indenture, no such change in the Default Settlement Method or irrevocable Settlement Method election will affect any Settlement Method theretofore elected (or deemed to be elected) with respect to any Note pursuant to this Section 14.02. Concurrently with providing notice to all Holders of a change in the Default Settlement Method or an election to irrevocably fix the Settlement Method, the Company shall promptly issue a report on Form 8-K or press release announcing that the Company has made such change to the Default Settlement Method or elected to irrevocably fix the Settlement Method, as the case may be. For the avoidance of doubt, such an irrevocable Settlement Method election, if made, shall be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(j). However, the Company may nonetheless choose to execute such an amendment at the Company’s option.
(vi) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period and in any event within one Business Day following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Share, if anyStock, the Company shall notify send such determination and the calculation thereof in reasonable detail or in such details as requested by the Depositary to the Trustee and the Conversion Agent (if other than the Trustee) of the same). The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 13.02(e14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the Applicable Procedures procedures of the Depositary in effect at that time and, if required, pay funds equal to the interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h) and (ii) in the case of a Physical Note or if a conversion is processed outside of the Depositary (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Shares Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and documents, (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h)14.02(h) and (5) provide or cause to be provided to the Trustee and Conversion Agent (if other than the Trustee) all information necessary to allow the Trustee or Conversion Agent (if other than the Trustee) to comply with any applicable tax reporting obligations, including without limitation any cost basis reporting obligations under Internal Revenue Code Section 6045. The Trustee and Conversion Agent may rely on information provided to it and shall have no responsibility whatsoever to verify or ensure the accuracy of such information. The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 13 14 on the Conversion Date (or as soon as practicable thereafter) for such conversion. No Notice of Conversion with respect to any Notes may be surrendered for conversion by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 14.0215.03. Notes may be surrendered for conversion only after the open of business and before the close of business on a Business Day. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date Business Day (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 13.03(b14.03(b) and Section 13.07(a14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement (provided that, with respect to any conversion following the Regular Record Date immediately preceding the Maturity Date where Physical Settlement applies, the Company will settle any such conversion on the Maturity Date or, if the Maturity Date is not a Business Day, the next Business Day, and the Conversion Date will be deemed to be such date), or on the second Business Day immediately following the last Trading Day of the Observation Period, if in the case of any other Settlement Method appliesMethod. If any shares of Common Shares Stock are due to a converting Holder, the Company shall issue or cause to be issued, and deliver (or otherwise cause to be deliveredif applicable) to the Conversion Agent or to such converting Holder, or such Holder’s nominee or nominees, the full number of shares of Common Shares Stock to which such Holder shall be entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any Physical Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Physical Note so surrendered a new Physical Note or Physical Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Physical Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Physical Notes issued upon such conversion being different from the name of the Holder of the old Physical Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Shares Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Shares Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 13.0414.04, no adjustment shall be made for dividends on any shares of Common Shares Stock issued upon the conversion of any Note as provided in this Article 1314.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make cause a notation reduction on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below in this Section 13.02(h)below, and the Company will not adjust the Conversion Rate for any accrued and unpaid interest on any converted the Notes. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common SharesStock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided, however, provided that no such payment shall be required (1) for conversions following after the close of business on the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record at the close of business on the Regular Record Date immediately preceding the Maturity Date, Date shall receive the full interest payment due on the Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date.
(i) The Person in whose name any the shares of Common Shares Stock shall be issuable upon conversion shall be treated as a shareholder deemed to be the stockholder of record of such shares as of the close of business on the relevant Conversion Date (if in the case of Physical Settlement applies to such conversionSettlement) or as of the close of business on the last Trading Day of the relevant Observation Period (if Combination Settlement applies to such conversion), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional Common Share upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Common Share issuable upon conversion based on the Daily VWAP for the relevant Conversion Date, in the case of Physical Settlement, or based on the Daily VWAP for the last Trading Day of the relevant Observation Period, in the case of Combination Settlement. For each Note surrendered for conversion), if as the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be issuable upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 13.02, Except as provided in Section 13.03(b) and Section 13.07(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying pay or deliveringdeliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 13.02 (“Physical Settlement”), ) or a combination of cash and shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 13.02 (“Combination Settlement”), at its the Company’s election, as set forth in this Section 13.02the case may be, subject to the requirements of Section 13.07as described below.
(i) All conversions for which the relevant Conversion Date occurs during a Redemption Period occurring on or after December 1, 2036, shall be settled using the same Settlement Method, and all conversions for which the relevant Conversion Date occurs on or after . Prior to December 1, 2023 shall be settled using the same Settlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs during a Redemption Period and any conversions for which the relevant Conversion Date occurs on or after December 1, 20232036, the Company shall use the same Settlement Method for all conversions with occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with that occur on different Conversion Dates.
(iii) If, in respect of any Conversion Date (or any conversion for which . If the relevant Conversion Date occurs during Company elects a Redemption Period on or after December 1, 2023)Settlement Method, the Company elects shall notify converting Holders in writing, through the Trustee upon its receipt of a written instruction from the Company to deliver a send such notification, such instruction to contain the form of notice to be so given, of the Settlement Method it has selected (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company shall deliver such Settlement Notice to converting Holders no later than the close of business on the Trading Day immediately following the relevant related Conversion Date (or, in the case of any conversions of any Notes for which the relevant Conversion Date occurs (A) during a Redemption Period, in the applicable Redemption Notice or (B) occurring on or after December 1, 20232036, no later than the close of business on the Business Scheduled Trading Day immediately preceding December 1, 20232036, such notice to be given to all Holders, whether or not converting). If the Company does not so elect a Settlement Method with respect to any conversion prior to the deadline set forth in the immediately preceding sentence, then the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected the Default Settlement Method in respect of such conversion. Such Settlement Notice, if provided, shall specify the relevant Settlement Method and, in the case of Combination Settlement, the applicable Specified Dollar Amount. If the Company delivers a Settlement Notice electing Combination Settlement in respect of to its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes to be converted in such Settlement NoticeObligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall will be equal to $1,000. If the Company elects Combination Settlement, but does not timely notify converting holders of the Specified Dollar Amount per $1,000 principal amount of Notes, such Specified Dollar Amount will be deemed to be $1,000. For the avoidance of doubtAt any time on or prior to December 1, the Company’s failure to so select a Settlement Method or Specified Dollar Amount when so permitted shall not constitute a Default or Event of Default under this Indenture or the Notes. By notice to the Holders2036, the Company may change irrevocably elect (a “Net Share Settlement Election”) to satisfy the Default Settlement Method conversion obligation with respect to any permitted Notes to be converted after the date of such election through Combination Settlement Methodwith a Specified Dollar Amount of $1,000 per $1,000 principal amount of Notes. The Company may make a Net Share Settlement Election at its sole discretion without the consent of the Holders. Upon making a Net Share Settlement Election, except it may not change the Default Settlement Method during any Redemption Period Company will promptly (i) use reasonable efforts to post such information on its website or otherwise publicly disclose such information and (ii) provide written notice to the Trustee and the Conversion Agent (if other than the Trustee) and to the Holders by mailing such notice to Holders at their address in the Register (in respect the case of Notes converted with a Conversion Date occurring during such Redemption Period) Physical Note), or on or after December 1, 2023 through the facilities of the Depositary (in respect the case of Notes converted with a Conversion Date that occurs on or after December 1, 2023Global Note).
(ivii) The cash, shares of Common Shares Stock or combination of cash and shares of Common Shares Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows follows:
(A) If the Company elects Physical Settlement, the Company will deliver to converting holdings in respect of each $1,000 principal amount of Notes notes being converted:
(A) if Physical Settlement applies to such conversion, converted a number of shares of the Company’s Common Shares Stock equal to the Conversion Rate Rate, together with cash, if applicable, in effect on the Conversion Date for such conversionlieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 13.02;
(B) if If the Company elects Cash Settlement applies to such conversionSettlement, the Company shall will pay to the converting Holder Holders in respect of each $1,000 principal amount of Notes notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 25 40 consecutive Trading Days during in the related relevant Observation Period; and
(C) if If the Company elects (or is deemed to have elected) Combination Settlement applies to such conversionSettlement, the Company shall will pay or deliver, as the case may be, to the converting Holder Holders in respect of each $1,000 principal amount of Notes being converted, converted a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 25 40 consecutive Trading Days during in the related relevant Observation Period, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 13.02.
(viii) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the applicable Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional Common Share, if anyshare, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) in writing of the sameDaily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 13.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the Applicable Procedures procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h) and, if required, pay all transfer and similar taxes, if any as provided in Sections 13.02(d) or (e), and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Shares Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents documents, (4) if required, pay all transfer or similar taxes and (45) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h). The Trustee (and and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 13 XIII on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered for conversion delivered by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 14.0214.03. Nothing herein shall preclude any withholding of tax required by law. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 13.03(b) and Section 13.07(a), the The Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second third Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement appliesSettlement, or on the second third Business Day immediately following the last Trading Day of the Observation Period, if in the case of any other Settlement Method appliesMethod. If any shares of Common Shares Stock are due to a converting HolderHolders, the Company shall issue and deliver (or otherwise cause to be delivered) issued, and deliver to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common Shares Stock to which such Holder shall be entitled, in book-entry format through the Depositary, entitled in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, but with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Shares Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Shares Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 13.04, no adjustment shall be made for dividends on any Common Shares shares issued upon the conversion of any Note as provided in this Article 13XIII.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below in this Section 13.02(h), and the Company will not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notesbelow. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not includingexcluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not includingexcluding, the relevant such Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of the Company’s Common SharesStock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided, however, provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Repurchase Date or Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (43) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists exist at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record Notes on the Regular Record Date immediately preceding the Maturity Date, shall Date and the Repurchase Date or Redemption Date described in (1) and (2) of this paragraph will receive the full interest payment due on the Maturity Date in cash or other applicable Interest Payment Date, regardless of whether their Notes have been converted following such Regular Record Date.
(i) The Person in whose name the certificate for any shares of Common Shares shall be issuable Stock delivered upon conversion is registered shall be treated as a shareholder stockholder of record of such shares as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement applies to such conversionSettlement) or as of the close of business on the last Trading Day of the relevant Observation Period (if the Company elects (or is deemed to have elected) to satisfy the related Conversion Obligation by Combination Settlement applies to such conversionSettlement), as the case may be, subject to Sections 13.04(c) and 13.04(e). Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional share of Common Share Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Share Stock issuable upon conversion based on on, in the case of Combination Settlement, the Daily VWAP for on the relevant Conversion DateLast Trading Day of the applicable Observation Period, or, in the case of Physical Settlement, or based on the Daily daily VWAP for the last Trading Day of on the relevant Observation Period, in the case of Combination SettlementConversion Date. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be issuable issued upon conversion thereof thereof, shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant applicable Observation Period Period, and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Sources: Indenture (HCI Group, Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 13.0214.02, Section 13.03(b14.03(b) and Section 13.07(a14.07(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying pay or deliveringdeliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Physical Settlement”), ) or a combination of cash and shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Combination Settlement”), at its election, as set forth in this Section 13.02, subject to the requirements of Section 13.0714.02.
(i) All conversions for which the relevant Conversion Date occurs during after the Company’s issuance of a Redemption Period shall be settled using Notice with respect to the same Settlement MethodNotes and prior to the related Redemption Date, and all conversions for which the relevant Conversion Date occurs on or after December April 1, 2023 2029 shall be settled using the same Settlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs during after the Company’s issuance of a Redemption Period Notice with respect to the Notes but prior to the related Redemption Date, and any conversions for which the relevant Conversion Date occurs on or after December April 1, 20232029, the Company shall use the same Settlement Method for all conversions with occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with occurring on different Conversion Dates.
(iii) If, in respect of any Conversion Date (or any conversion for which one of the relevant Conversion Date occurs during a Redemption Period on or after December 1periods described in the fourth immediately succeeding set of parentheses, 2023as the case may be), the Company elects to a Settlement Method, the Company shall deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be)) in writing to converting Holders, the Company shall deliver such Settlement Notice to converting Holders Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions of any Notes for which the relevant Conversion Date occurs (Ax) during after the date of issuance of a Redemption Period, in Notice with respect to the applicable Redemption Notice or (B) on or after December 1, 2023, no later than Notes and prior to the close of business on the Business second Scheduled Trading Day immediately preceding December the related Redemption Date, in such Redemption Notice, or (y) on or after April 1, 20232029, no later than April 1, 2029). Delivery of such Settlement Notice is irrevocable. If the Company does not elect a Settlement Method with respect to any conversion prior to the deadline set forth in the immediately preceding sentence, then the Company shall no longer have the right to elect Cash Settlement or Physical Settlement for such conversion and the Company shall be deemed to have elected the Default Combination Settlement Method in respect of such conversionits Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice, if provided, Notice shall specify the relevant Settlement Method and, and in the case of an election of Combination Settlement, the applicable relevant Settlement Notice shall indicate the Specified Dollar AmountAmount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. For If the avoidance Company calls any Notes for redemption pursuant to Article XVI, and the related Redemption Date is on or after April 1, 2029 (x) if the date of doubt, the Company’s failure relevant Redemption Notice occurs prior to so select the date the Company elects (or is deemed to have elected) a Settlement Method or Specified Dollar Amount when so permitted shall not constitute a Default or Event of Default under this Indenture or the Notes. By notice to the Holders, the Company may change the Default Settlement Method to any permitted Settlement Method, except it may not change the Default Settlement Method during any Redemption Period (in respect of Notes converted all conversions with a Conversion Date occurring during such Redemption Period) or on or after December April 1, 2023 (2029, then, in respect of Notes converted all conversions with a Conversion Date occurring on or after April 1, 2029, the Company must elect the Settlement Method that the Company elected (or was deemed to have elected) in such Redemption Notice and (y) if the date of such Redemption Notice occurs on or after December the date the Company elects (or is deemed to have elected) a Settlement Method in respect of all conversions with a Conversion Date occurring on or after April 1, 2023)2029, then, the Company must elect in such Redemption Notice the Settlement Method that the Company elected (or was deemed to have elected) in respect of all conversions with a Conversion Date occurring on or after April 1, 2029.
(iv) The cash, shares of Common Shares Stock or combination of cash and shares of Common Shares Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows follows:
(A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted:
(A) if Physical Settlement applies to such conversion, converted a number of shares of Common Shares Stock equal to the Conversion Rate in effect on the Conversion Date for such conversion(plus cash in lieu of any fractional share);
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement applies to such conversionSettlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 25 40 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement applies to such conversionSettlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 25 40 consecutive Trading Days during the related Observation PeriodPeriod (plus cash in lieu of any fractional share).
(v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common ShareStock, if anyand in any event within one (1) Business Day following the last day of the Observation Period, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) in writing of its determination of the sameDaily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock and the calculation thereof in reasonable detail or in such detail as requested by the Depositary. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(bvi) Subject At any time prior to Section 13.02(e)April 1, before any Holder of a Note shall be entitled 2029, the Company may irrevocably elect to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply satisfy its Conversion Obligation with the Applicable Procedures and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice respect to the Conversion Agent as set forth in Notes to be converted after the Form date of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant such election by delivering cash up to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the aggregate principal amount of Notes to be converted converted, and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any Common Shares to be delivered upon settlement shares of the Conversion Obligation to be registeredCommon Stock, (2) surrender such Notes, duly endorsed to the Company cash or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 13 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder combination thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of the remainder, if any, of its Conversion Obligation. Upon making such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 14.02. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 13.03(b) and Section 13.07(a)election, the Company shall pay or deliver, as promptly (x) provide written notice to the case may beHolders, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if Physical Settlement applies, or on the second Business Day immediately following the last Trading Day of the Observation Period, if any other Settlement Method applies. If any Common Shares are due to a converting Holder, the Company shall issue Trustee and deliver (or otherwise cause to be delivered) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of Common Shares to which such Holder shall be entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any Common Shares upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the Common Shares being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 13.04, no adjustment shall be made for dividends on any Common Shares issued upon the conversion of any Note as provided in this Article 13.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
) and (hy) Upon conversion, issue a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below in this Section 13.02(h), and the Company will not adjust the Conversion Rate for any accrued and unpaid interest report on any converted Notes. The Company’s settlement of the full Conversion Obligation shall be deemed Form 8-K or press release or publish on its website to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and Common Shares, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided, however, announce that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to made such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, shall receive the full interest payment due on Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Datean election.
(i) The Person in whose name any Common Shares shall be issuable upon conversion shall be treated as a shareholder of record of such shares as of the close of business on the relevant Conversion Date (if Physical Settlement applies to such conversion) or as of the close of business on the last Trading Day of the relevant Observation Period (if Combination Settlement applies to such conversion), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional Common Share upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Common Share issuable upon conversion based on the Daily VWAP for the relevant Conversion Date, in the case of Physical Settlement, or based on the Daily VWAP for the last Trading Day of the relevant Observation Period, in the case of Combination Settlement. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be issuable upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 13.0214.02, Section 13.03(b14.03(b) and Section 13.07(a14.07(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying or delivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Physical Settlement”), ) or a combination of cash and shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Combination Settlement”), at its election, as set forth in this Section 13.02, subject to the requirements of Section 13.0714.02.
(i) All conversions for which the relevant Conversion Date occurs during on or after the date of the Company’s issuance of a Redemption Period shall Notice with respect to any Notes and prior to the close of business on the Business Day before the related Redemption Date will be settled using the same Settlement Method, and all conversions for which the relevant Conversion Date occurs on or after December 1April 3, 2023 2028 shall be settled using the same Settlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs during after the Company’s issuance of a Redemption Period Notice but prior to the close of business on the Business Day before the related Redemption Date, and any conversions for which the relevant Conversion Date occurs on or after December 1April 3, 20232028, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates.
(iii) If, in respect of any Conversion Date (or any conversion for which the relevant Conversion Date occurs during (i) after the Company’s issuance of a Redemption Period Notice and prior to the close of business on the Business Day before the related Redemption Date, or (ii) on or after December 1April 3, 20232028), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company , shall deliver such Settlement Notice to converting Holders Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions of any Notes (i) for which the relevant Conversion Date occurs (A) during after the Company’s issuance of a Redemption Period, in the applicable Redemption Notice or (B) on or after December 1, 2023, no later than and prior to the close of business on the Business Day immediately preceding December 1before the related Redemption Date, 2023in such Redemption Notice (and, in the case of a partial redemption, in a notice sent on the relevant Redemption Notice Date to all Holders of Notes not called for redemption) (and, for the avoidance of doubt, if the related Redemption Date is on or after April 3, 2028, then such Settlement Method must be the same Settlement Method that applies to all conversions with a Conversion Date that occurs on or after April 3, 2028), (ii) on or after April 3, 2028, no later than April 3, 2028 or (iii) for which the Company has irrevocably elected Physical Settlement as described under Section 14.01(b)(ii), in the related notice described therein) (in each case, the “Settlement Method Election Deadline”). If the Company does not elect a Settlement Method with respect to any conversion prior to the deadline set forth in the immediately preceding sentence with respect to any conversion as described in the preceding sentence, then the Company shall be deemed to have elected the Default Settlement Method in with respect of to such conversion. Such Settlement Notice, if provided, Notice shall specify the relevant Settlement Method and, and in the case of an election of Combination Settlement, the applicable relevant Settlement Notice shall indicate the Specified Dollar AmountAmount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement (or is deemed to elect Combination Settlement) in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. For the avoidance of doubt, the Company’s failure to so select a Settlement Method or Specified Dollar Amount when so permitted shall not constitute a Default or Event of Default under this Indenture or the Notes. By notice to the Holders, the Company may change the Default Settlement Method to any permitted Settlement Method, except it may not change the Default Settlement Method during any Redemption Period (in respect of Notes converted with a Conversion Date occurring during such Redemption Period) or on or after December 1, 2023 (in respect of Notes converted with a Conversion Date that occurs on or after December 1, 2023).
(iv) The cash, shares of Common Shares Stock or combination of cash and shares of Common Shares Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows follows:
(A) if Physical Settlement applies, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted:
(A) if Physical Settlement applies to such conversion, converted a number of shares of Common Shares Stock equal to the Conversion Rate in effect on the Conversion Date for such conversionDate;
(B) if Cash Settlement applies to such conversionapplies, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 25 30 consecutive Trading Days during the related Observation Period; and
(C) if Combination Settlement applies to such conversionapplies, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 25 30 consecutive Trading Days during the related Observation Period.
(v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Share, if anyStock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the sameDaily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 13.02(e14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the Applicable Procedures applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”” which notice shall be irrevocable, in either case) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Shares Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 13 14 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Holder ▇▇▇▇▇▇ has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 14.0215.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 13.03(b14.03(b) and Section 13.07(a14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if Physical Settlement appliesapplies (provided that, with respect to any Conversion Date following the Regular Record Date immediately preceding the Maturity Date where Physical Settlement applies to the related conversion, the Company shall settle any such conversion on the Maturity Date (or, if the Maturity Date is not a Business Day, the next Business Day), and, for the purposes of calculating the consideration due upon such conversion, the Conversion Date thereof will be deemed to occur on the second Scheduled Trading Day preceding the Maturity Date), or on the second Business Day immediately following the last Trading Day of the Observation Period, if any other Settlement Method applies. If any shares of Common Shares Stock are due to a converting Holder, the Company shall issue or cause to be issued, and deliver (or otherwise cause to be deliveredif applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of shares of Common Shares Stock to which such Holder shall be entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Shares Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Shares Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 13.0414.04, no adjustment shall be made for dividends on any shares of Common Shares Stock issued upon the conversion of any Note as provided in this Article 1314.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below in this Section 13.02(h), and the Company will not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notesbelow. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common SharesStock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided, however, provided that no such payment shall be required (1) for conversions following the close of business on the Regular Record Date immediately preceding the Maturity Date; (2) for Notes called (or deemed called) for Optional Redemption, if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the second Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record at the close of business on the Regular Record Date immediately preceding the Maturity Date, or a Fundamental Change Repurchase Date or Redemption Date referred to above, shall receive the full interest payment due on the corresponding Interest Payment Date, or the Maturity Date Date, in cash regardless of whether their Notes have been converted following such Regular Record Date.
(i) The Person in whose name any the shares of Common Shares Stock shall be issuable upon conversion shall be treated as a shareholder become the stockholder of record of such shares as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement applies to such conversionSettlement) or as of the close of business on the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement applies to such conversionSettlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional share of Common Share Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Share Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion DateDate (or, if such Conversion Date is not a Trading Day, the immediately preceding Trading Day), in the case of Physical Settlement, or based on the Daily VWAP for the last Trading Day of the relevant Observation Period, in the case of Combination Settlement. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be issuable issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Sources: Indenture (Cerence Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 13.02, Section 13.03(b) and Section 13.07(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying pay or deliveringdeliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 13.02 (“Physical Settlement”), ) or a combination of cash and shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 13.02 (“Combination Settlement”), at its election, as set forth in this Section 13.02, subject to the requirements of Section 13.07.
(i) All conversions for which the relevant Conversion Date occurs (x) on or after March 31, 2030 or (y) during a Redemption Period shall be settled using for Notes converted in connection with the same Settlement Method, and all conversions for which the relevant Conversion Date occurs on or after December 1, 2023 related Optional Redemption shall be settled using the same Settlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs during a Redemption Period in connection with an Optional Redemption, and any conversions for which the relevant Conversion Date occurs on or after December 1March 31, 20232030, the Company shall use the same Settlement Method for all conversions with occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with that occur on different Conversion Dates.
(iii) If, in respect of any Conversion Date (or any conversion for which one of the relevant Conversion Date occurs during a Redemption Period on or after December 1periods described in the fourth immediately succeeding set of parentheses, 2023as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company shall deliver such Settlement Notice to converting Holders Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions of any Notes for which the relevant Conversion Date occurs (Ax) during a Redemption PeriodPeriod that are in connection with the related Optional Redemption, in the applicable related Redemption Notice Notice, or (By) on or after December 1March 31, 20232030, no later than the close of business on the Business Scheduled Trading Day immediately preceding December 1March 31, 20232030) (in each case, the “Settlement Method Election Deadline”). If the Company does not elect a Settlement Method with respect to any conversion prior to the deadline set forth in the immediately preceding sentenceSettlement Method Election Deadline, then the Company shall no longer have the right to elect Cash Settlement or Physical Settlement for such conversion or during such period and the Company shall be deemed to have elected the Default Combination Settlement Method in respect of such conversionits Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice, if provided, Notice shall specify the relevant Settlement Method and, and in the case of an election of Combination Settlement, the applicable relevant Settlement Notice shall indicate the Specified Dollar AmountAmount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. Prior to March 31, 2030, the Company may, at its election, by notice to Holders, the Trustee, and the Conversion Agent (if other than the Trustee), irrevocably elect to satisfy the Conversion Obligation with respect to the Notes through Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of at least $1,000 for all Conversion Dates occurring subsequent to delivery of such notice and for which another Settlement Method does not otherwise apply or is not otherwise deemed to apply as set forth above. If the Company irrevocably elects Combination Settlement with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above a specific amount, the Company shall, after the date of such election, inform Holders, the Trustee, and the Conversion Agent (if other than the Trustee) of such Specified Dollar Amount no later than the Settlement Method Election Deadline, or, if the Company does not timely notify Holders, the Trustee, and the Conversion Agent of the Specified Dollar Amount, such Specified Dollar Amount shall be the specific amount set forth in the notice of such change or election or, if no specific amount was set forth in the notice of such change or election, such Specified Dollar Amount shall be $1,000 per $1,000 principal amount of Notes. If the Company changes the Default Settlement Method or irrevocably elects to fix the Settlement Method pursuant to the preceding sentence, the Company shall promptly either post the Default Settlement Method or the fixed Settlement Method, as applicable, on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission. The irrevocable election shall apply to all conversions of Notes with a Conversion Date occurring subsequent to delivery of such notice; provided, however, that no such change in the Default Settlement Method or irrevocable election will affect any Settlement Method theretofore elected (or deemed to be elected) with respect to any Note. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the Company’s failure need to so select a Settlement Method or Specified Dollar Amount when so permitted shall not constitute a Default or Event of Default under amend this Indenture or the Notes, including pursuant to Section 10.01(l). By notice to the HoldersHowever, the Company may change the Default Settlement Method nonetheless choose to any permitted Settlement Method, except it may not change the Default Settlement Method during any Redemption Period (in respect of Notes converted with a Conversion Date occurring during execute such Redemption Period) or on or after December 1, 2023 (in respect of Notes converted with a Conversion Date that occurs on or after December 1, 2023)an amendment at its option.
(iv) The cash, shares of Common Shares Stock or combination of cash and shares of Common Shares Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows follows:
(A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted:
(A) if Physical Settlement applies to such conversion, converted a number of shares of Common Shares Stock equal to the Conversion Rate in effect on the Conversion Date for such conversionDate;
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement applies to such conversionSettlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 25 20 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement applies to such conversionSettlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 25 20 consecutive Trading Days during the related Observation Period.
(v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Share, if anyStock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the sameDaily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock, subject to the applicable procedures of the Depositary. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 13.02(e13.02(f), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the Applicable Procedures procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h13.02(f) and (ii) in the case of a Physical Note Note, or when required by applicable procedures of the Depositary in effect at that time in the case of a Global Note, (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Shares Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h13.02(f). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 13 on as soon as practical, but in any event, not later than the Trading Day immediately following the Conversion Date for such conversionDate. No Notice of Conversion with respect to any Notes may be surrendered for conversion by a Holder thereof if such Holder ▇▇▇▇▇▇ has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 14.0214.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 13.03(b) and Section 13.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement applies(provided that, with respect to any Conversion Date occurring after December 1, 2030, settlement shall occur on the Maturity Date), or on the second Business Day immediately following the last Trading Day of the Observation Period, if in the case of any other Settlement Method appliesMethod. If any shares of Common Shares Stock are due to a converting Holder, the Company shall issue or cause to be issued, and deliver (or otherwise cause to be deliveredif applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of shares of Common Shares Stock to which such Holder shall be entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Shares Stock upon conversion, unless the tax is due because the Holder requests any such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Shares Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 13.04, no adjustment shall be made for dividends on any shares of Common Shares Stock issued upon the conversion of any Note as provided in this Article 13.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below in this Section 13.02(h)below, and the Company will shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted the Notes. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common SharesStock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided, however, provided that no such payment shall be required for (1) for conversions of the Notes following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a for Notes converted in connection with an Optional Redemption Date that is after a Regular Record Date pursuant to Section 13.01(b)(v) and on or prior to the Business Day immediately following the corresponding Interest Payment DateSection 13.03; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date or any Fundamental Change Repurchase Date or Redemption Date, in each case described above, shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted following such Regular Record Date.
(i) The Person in whose name any the shares of Common Shares Stock shall be issuable upon conversion shall be treated as a shareholder stockholder of record of such shares as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement applies to such conversionSettlement) or as of the close of business on the last Trading Day of the relevant Observation Period (if Combination Settlement applies to such conversion), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional Common Share upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Common Share issuable upon conversion based on the Daily VWAP for the relevant Conversion Date, in the case of Physical Settlement, or based on the Daily VWAP for the last Trading Day of the relevant Observation Period, in the case of Combination Settlement. For each Note surrendered for conversion, if the Company has elected (or is deemed elects to have elected) Combination Settlement, the full number of shares that shall be issuable upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.satisfy
Appears in 1 contract
Sources: Indenture (Groupon, Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Except as provided in Section 13.02, Section 13.03(b14.03(a) and Section 13.07(a14.07(a), upon conversion of any Note, on the second Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall satisfy its Conversion Obligation by paying or delivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (a “Cash Settlement”)Settlement Amount” equal to the sum of the Daily Settlement Amounts for each of the 40 Trading Days during the relevant Observation Period for such Note, Common Shares, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with Section 13.02(jsubsection (j) (“Physical Settlement”), or a combination of cash and Common Shares, together, if applicable, with cash in lieu of delivering any fractional Common Share in accordance with Section 13.02(j) (“Combination Settlement”), at its election, as set forth in this Section 13.02, subject to the requirements of Section 13.0714.02.
(i) All conversions of Called Notes for which the relevant Conversion Date occurs during a the related Redemption Period shall be settled using the same Settlement MethodPeriod, and all conversions for which the relevant Conversion Date occurs on or after December 1February 15, 2023 2026, shall be settled using the same Settlement Methodforms and amounts of consideration.
(ii) Except for any conversions of Called Notes for which the relevant Conversion Date occurs during a the related Redemption Period Period, and any conversions for which the relevant Conversion Date occurs on or after December 1February 15, 20232026, the Company shall use the same Settlement Method forms and amounts of consideration for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method forms and amounts of consideration with respect to conversions with different Conversion Dates.
(iii) If, in respect of any Conversion Date (or any conversion conversions of Called Notes for which the relevant Conversion Date occurs during a the related Redemption Period or any conversions for which the relevant Conversion Date occurs on or after December 1February 15, 20232026), the Company elects to deliver settle all or a notice (the “Settlement Notice”) portion of its Conversion Obligation in excess of the relevant Settlement Method principal portion of the Notes being converted in cash in respect of such Conversion Date (or such period, as the case may be), the Company shall deliver inform converting Holders, the Trustee and the Conversion Agent of such election (the “Settlement Notice to converting Holders Notice”) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of (A) any conversions of any Called Notes for which the relevant Conversion Date occurs (A) during a the related Redemption Period, in the applicable related Notice of Redemption Notice or (B) any conversions of Notes for which the relevant Conversion Date occurs on or after December 1February 15, 20232026, no later than February 15, 2026) and the close Company shall indicate in such Settlement Notice the percentage of business on the Business Day immediately preceding December 1, 2023Conversion Obligation in excess of the principal portion of the Notes being converted that shall be paid in cash (the “Cash Percentage”). If the Company does not elect a Settlement Method with respect to any conversion Cash Percentage prior to the deadline set forth in the immediately preceding sentence, then the Company shall no longer have the right to elect a Cash Percentage with respect to any conversion on such Conversion Date or during such period, and the Company shall be deemed to have elected the Default Settlement Method in a Cash Percentage of 0% with respect of to such conversion. Such Settlement Notice, if provided, shall specify the relevant Settlement Method and, in the case of Combination Settlement, the applicable Specified Dollar Amount. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. For the avoidance of doubt, the Company’s failure to so select a Settlement Method or Specified Dollar Amount when so permitted shall not constitute a Default or Event of Default under this Indenture or the Notes. By notice to the Holders, the Company may change the Default Settlement Method to any permitted Settlement Method, except it may not change the Default Settlement Method during any Redemption Period (in respect of Notes converted with a Conversion Date occurring during such Redemption Period) or on or after December 1, 2023 (in respect of Notes converted with a Conversion Date that occurs on or after December 1, 2023).
(iv) The cash, Common Shares or combination of cash and Common Shares in respect of any conversion of Notes (the “Daily Settlement Amount”) shall be computed as follows in respect of each $1,000 principal amount of Notes being converted:
(A) if Physical Settlement applies to such conversion, a number of Common Shares equal to the Conversion Rate in effect on the Conversion Date for such conversion;
(B) if Cash Settlement applies to such conversionAmounts, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 25 consecutive Trading Days during the related Observation Period; and
(C) if Combination Settlement applies to such conversion, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 25 consecutive Trading Days during the related Observation Period.
(v) The Daily Net Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts, the Daily Net Settlement Amounts or (if applicable) and the Daily Conversion Values, as the case may be, Values and the amount of cash payable in lieu of delivering any fractional share of Common Share, if anyStock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the sameDaily Settlement Amounts, the Daily Net Settlement Amounts (if applicable) and the Daily Conversion Values and the amount of cash payable in lieu of delivering any fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 13.02(e14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the Applicable Procedures applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Shares Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 13 14 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 14.0215.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 13.03(b) and Section 13.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if Physical Settlement applies, or on the second Business Day immediately following the last Trading Day of the Observation Period, if any other Settlement Method applies. If any shares of Common Shares Stock are due to a converting Holder, the Company shall issue or cause to be issued, and deliver (or otherwise cause to be deliveredif applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of shares of Common Shares Stock to which such Holder shall be entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Shares Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Shares Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 13.0414.04, no adjustment shall be made for dividends on any shares of Common Shares Stock issued upon the conversion of any Note as provided in this Article 1314.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below in this Section 13.02(h), and the Company will not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notesbelow. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and Common SharesNotes, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided, however, provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amountsoverdue interest, if any Defaulted Amounts overdue interest exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding (i) the Maturity Date, (ii) any Redemption Date described in clause (2) of the immediately preceding sentence and (iii) any Fundamental Change Repurchase Date described in clause (3) of the immediately preceding sentence, as applicable, shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted following such Regular Record Date.
(i) The Person in whose name any shares of Common Shares Stock shall be issuable upon conversion shall be treated as a shareholder stockholder of record of such shares as of the close of business on the relevant Conversion Date (if Physical Settlement applies to such conversion) or as of the close of business on the last Trading Day of the relevant Observation Period (if Combination Settlement applies to such conversion), as the case may bePeriod. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional share of Common Share Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Share Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date, in the case of Physical Settlement, or based on the Daily VWAP for the last Trading Day of the relevant Observation Period, in the case of Combination Settlement. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares shares, if any, that shall be issuable issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 13.0214.02, Section 13.03(b14.03(b) and Section 13.07(a14.07(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying pay or deliveringdeliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Physical Settlement”), ) or a combination of cash and shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with subsection (j) of this Section 13.02(j) 14.02 (“Combination Settlement”), at its election, as set forth in this Section 13.02, subject to the requirements of Section 13.0714.02.
(i) All (x) conversions for which the relevant Conversion Date occurs during after the Company’s issuance of a Redemption Period Notice with respect to the Notes and prior to the related Redemption Date shall be settled using the same Settlement Method, and (y) all conversions for which the relevant Conversion Date occurs on or after December January 1, 2023 2025 shall be settled using the same Settlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs during after the Company’s issuance of a Redemption Period Notice with respect to the Notes but prior to the related Redemption Date, and any conversions for which the relevant Conversion Date occurs on or after December January 1, 20232025, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates.
(iii) If, in respect of any Conversion Date (or any conversion for which one of the relevant Conversion Date occurs during a Redemption Period on or after December 1periods described in the third immediately succeeding set of parentheses, 2023as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company shall deliver such Settlement Notice to converting Holders Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions of any Notes for which the relevant Conversion Date occurs (Ax) during after the date of issuance of a Redemption PeriodNotice with respect to the Notes and prior to the related Redemption Date, in the applicable such Redemption Notice or (By) on or after December January 1, 20232025, no later than the close of business on the Business Day immediately preceding December January 1, 20232025). Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company does not elect a Settlement Method with respect to any conversion prior to the deadline set forth in the second immediately preceding sentence, then the Company shall be deemed to have elected the Default Settlement Method in respect of such conversion. Such Settlement Notice, if provided, shall specify the relevant Settlement Method and, in the case of Combination Settlement, the applicable Specified Dollar Amountits Conversion Obligation. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a timely notify the converting Holder of the applicable Specified Dollar Amount, then the Specified Dollar Amount for such conversion will be deemed to be $1,000 per $1,000 principal amount of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000Notes. For the avoidance of doubt, the Company’s failure to so select timely elect a Settlement Method or specify the applicable Specified Dollar Amount when so permitted shall not constitute a Default or Event of Default under this Indenture or the Notes. By notice to the Holders, the Company may change the Default Settlement Method to any permitted Settlement Method, except it may not change the Default Settlement Method during any Redemption Period (in respect of Notes converted with a Conversion Date occurring during such Redemption Period) or on or after December 1, 2023 (in respect of Notes converted with a Conversion Date that occurs on or after December 1, 2023)Indenture.
(iv) The cash, shares of Common Shares Stock or combination of cash and shares of Common Shares Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows follows:
(A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted:
(A) if Physical Settlement applies to such conversion, converted a number of shares of Common Shares Stock equal to the Conversion Rate in effect on the Conversion Date for such conversionDate;
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement applies to such conversionSettlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 25 50 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement applies to such conversionSettlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 25 50 consecutive Trading Days during the related Observation Period.
(v) The Company may, from time to time, change the Default Settlement Method by sending written notice of the new Default Settlement Method to all Holders, the Trustee and the Conversion Agent (if other than the Trustee). In addition, the Company may, by sending written notice to all Holders, irrevocably fix the Settlement Method to any Settlement Method that the Company is then permitted to elect, which Settlement Method shall apply to all conversions of Notes with a Conversion Date that is after the date the Company sends such written notice. Notwithstanding anything to the contrary in this Indenture, no such change in the Default Settlement Method or irrevocable Settlement Method election will affect any Settlement Method theretofore elected (or deemed to be elected) with respect to any Note pursuant to this Section 14.02. Concurrently with providing notice to all Holders of a change in the Default Settlement Method or an election to irrevocably fix the Settlement Method, the Company shall promptly issue a report on Form 8-K or press release announcing that the Company has made such change to the Default Settlement Method or elected to irrevocably fix the Settlement Method, as the case may be. For the avoidance of doubt, such an irrevocable Settlement Method election, if made, shall be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(j). However, the Company may nonetheless choose to execute such an amendment at the Company’s option.
(vi) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period and in any event within one Business Day following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Share, if anyStock, the Company shall notify send such determination and the calculation thereof in reasonable detail or in such details as requested by the Depositary to the Trustee and the Conversion Agent (if other than the Trustee) of the same). The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 13.02(e14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the Applicable Procedures procedures of the Depositary in effect at that time and, if required, pay funds equal to the interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(h) and (ii) in the case of a Physical Note or if a conversion is processed outside of the Depositary (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Shares Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and documents, (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h)14.02(h) and (5) provide or cause to be provided to the Trustee and Conversion Agent (if other than the Trustee) all information necessary to allow the Trustee or Conversion Agent (if other than the Trustee) to comply with any applicable tax reporting obligations, including without limitation any cost basis reporting obligations under Internal Revenue Code Section 6045. The Trustee and Conversion Agent may rely on information provided to it and shall have no responsibility whatsoever to verify or ensure the accuracy of such information. The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 13 14 on the Conversion Date (or as soon as practicable thereafter) for such conversion. No Notice of Conversion with respect to any Notes may be surrendered for conversion by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 14.0215.03. Notes may be surrendered for conversion only after the open of business and before the close of business on a Business Day. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date Business Day (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 13.03(b14.03(b) and Section 13.07(a14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement (provided that, with respect to any conversion following the Regular Record Date immediately preceding the Maturity Date where Physical Settlement applies, the Company will settle any such conversion on the Maturity Date or, if the Maturity Date is not a Business Day, the next Business Day, and the Conversion Date will be deemed to be such date), or on the second Business Day immediately following the last Trading Day of the Observation Period, if in the case of any other Settlement Method appliesMethod. If any shares of Common Shares Stock are due to a converting Holder, the Company shall issue or cause to be issued, and deliver (or otherwise cause to be deliveredif applicable) to the Conversion Agent or to such converting Holder, or such Holder’s nominee or nominees, the full number of shares of Common Shares Stock to which such Holder shall be entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any Physical Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Physical Note so surrendered a new Physical Note or Physical Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Physical Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Physical Notes issued upon such conversion being different from the name of the Holder of the old Physical Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Shares Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Shares Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 13.0414.04, no adjustment shall be made for dividends on any shares of Common Shares Stock issued upon the conversion of any Note as provided in this Article 1314.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make cause a notation reduction on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below in this Section 13.02(h)below, and the Company will not adjust the Conversion Rate for any accrued and unpaid interest on any converted the Notes. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common SharesStock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided, however, provided that no such payment shall be required (1) for conversions following after the close of business on the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record at the close of business on the Regular Record Date immediately preceding the Maturity Date, Date shall receive the full interest payment due on the Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date.
(i) The Person in whose name any the shares of Common Shares Stock shall be issuable upon conversion shall be treated as a deemed to be the shareholder of record of such shares as of the close of business on the relevant Conversion Date (if in the case of Physical Settlement applies to such conversionSettlement) or as of the close of business on the last Trading Day of the relevant Observation Period (if Combination Settlement applies to such conversion), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional Common Share upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Common Share issuable upon conversion based on the Daily VWAP for the relevant Conversion Date, in the case of Physical Settlement, or based on the Daily VWAP for the last Trading Day of the relevant Observation Period, in the case of Combination Settlement. For each Note surrendered for conversion), if as the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be issuable upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.case may
Appears in 1 contract
Sources: Indenture (Cryolife Inc)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 13.0214.02, Section 13.03(b14.03(b) and Section 13.07(a14.07(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying pay or deliveringdeliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), Common Ordinary Shares, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional Common Ordinary Share in accordance with subsection (k) of this Section 13.02(j) 14.02 (“Physical Settlement”), ) or a combination of cash and Common Ordinary Shares, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional Common Ordinary Share in accordance with subsection (k) of this Section 13.02(j) 14.02 (“Combination Settlement”), at its election, as set forth in this Section 13.02, subject to the requirements of Section 13.0714.02.
(i) All conversions for which the relevant Conversion Date occurs during a Redemption Period shall be settled using the same Settlement MethodPeriod, and all conversions for which the relevant Conversion Date occurs on or after December May 1, 2023 2025 shall be settled using the same Settlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs during a Redemption Period and any conversions for which the relevant Conversion Date occurs on or after December May 1, 20232025, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates.
(iii) If, in respect of any Conversion Date (or any conversion for which subject to the relevant Conversion Date occurs during a Redemption Period on or after December 1, 2023below proviso), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company Company, through written notice to the Trustee, shall deliver such Settlement Notice to converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, Date; provided that in the case of any conversions of any Notes (x) for which the relevant Conversion Date occurs (A) during a Redemption Period, the Company shall do so in the applicable related Redemption Notice or (By) on or after December May 1, 20232025, the Company shall do so no later than the close of business on the Business Day immediately preceding December May 1, 20232025 (such notice in respect of the conversions on or after May 1, 2025, the “Final Settlement Method Election Notice”). If the Company does not elect a Settlement Method with respect to any conversion prior to the deadline set forth in the immediately preceding sentence, then the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected the Default Combination Settlement Method in respect of such conversionits Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000 (the “Default Settlement Method”). Such Settlement Notice, if provided, Notice shall specify the relevant Settlement Method and, and in the case of an election of Combination Settlement, the applicable relevant Settlement Notice shall indicate the Specified Dollar AmountAmount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. For the avoidance of doubt, the Company’s failure to so select timely elect a Settlement Method or Specified Dollar Amount when so permitted shall not constitute a Default or Event of Default under this Indenture or Indenture. Notwithstanding the Notesforegoing, the Company may, from time to time, change the Default Settlement Method by sending notice of the new Default Settlement Method to the Holders, Trustee and Conversion Agent. By In addition, the Company may, by notice to the Holders, irrevocably fix the Company may change the Default Settlement Method to any permitted Settlement Method, except it may not change the Default Settlement Method during any Redemption Period (in respect of Notes converted with a Conversion Date occurring during such Redemption Period) or on or after December 1that it is then permitted to elect, 2023 (in respect of Notes converted that will apply to all Note conversions with a Conversion Date that occurs is on or after December 1the date the Company sends such notice. Notwithstanding the foregoing, 2023no such change in the Default Settlement Method or irrevocable election will affect any Settlement Method theretofore elected (or deemed to be elected) with respect to any Note pursuant to the provisions described in this Section 14.02. For the avoidance of doubt, such an irrevocable election or change, if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(i). However, the Company may nonetheless choose to execute such an amendment at its option.
(iv) The cash, Common Ordinary Shares or combination of cash and Common Ordinary Shares in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows follows:
(A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted:
(A) if Physical Settlement applies to such conversion, converted a number of Common Ordinary Shares equal to the Conversion Rate in effect on the Conversion Date for such conversionDate;
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement applies to such conversionSettlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 25 40 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement applies to such conversionSettlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 25 40 consecutive Trading Days during the related Observation Period.
(v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional Common Ordinary Share, if any, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the sameDaily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional Ordinary Shares. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 13.02(e14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the Applicable Procedures procedures of the Depositary in effect at that time and, if required, pay funds equal to interest any Special Interest payable on the next Special Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(i) and pay all transfer or similar taxes, if any, required pursuant to Section 14.02(e) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any Common Ordinary Shares to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest Special Interest payable on the next Special Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h14.02(i). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 13 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered for conversion by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 14.0215.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 13.03(b14.03(b) and Section 13.07(a14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation (i) on the second third Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement applies(unless such Conversion Date occurs following October 15, 2025, in which case the Company will deliver the relevant consideration on the Maturity Date), or (ii) on the second third Business Day immediately following the last Trading Day of the Observation Period, if in the case of any other Settlement Method appliesMethod. If any Common Ordinary Shares are due to a converting Holder, the Company shall issue or cause to be issued, and deliver (or otherwise cause to be deliveredif applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of Common Ordinary Shares to which such Holder shall be entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation. Each date that conversion consideration is due in respect of any Conversion Obligation arising under this Indenture is referred to as a “Settlement Date”.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any Common Ordinary Shares upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that taxtax (if any). The Conversion Agent may refuse to deliver the certificates representing the Common Ordinary Shares being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 13.0414.04, no adjustment shall be made for dividends on any Common Ordinary Shares issued upon the conversion of any Note as provided in this Article 1314.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) To the extent that the Settlement Method applicable to the conversion of a Note by a Holder is, or is deemed to be, Cash Settlement or Combination Settlement with a Specified Dollar Amount greater than $0, the Holder so converting (or, in case of a Global Note, the relevant beneficial owner acquiring beneficial ownership of the consideration due upon such conversion) that is not an Israeli tax resident shall (i) in the case of any conversions for which the relevant Conversion Date does not occur during a Redemption Period or on or after May 1, 2025, upon the Company’s written request received by such Holder (or, in the case of a Global Note, such beneficial owner) within ten Business Days after the relevant Conversion Date, (ii) in the case of any conversions for which the relevant Conversion Date occurs during a Redemption Period, upon the Company’s request set forth in the relevant Redemption Notice or (iii) in the case of any conversions for which the relevant Conversion Date occurs on or after May 1, 2025 (and not during a Redemption Period), upon the Company’s request set forth in the Final Settlement Method Election Notice or, if no Final Settlement Method Election Notice is given, upon the Company’s written request received by such Holder (or, in the case of a Global Note, such beneficial owner) no later than ten Business Days prior to the last potential Conversion Date that can occur prior to the Maturity Date), provide to the Conversion Agent a duly completed “Declaration of Status for Israeli Income Tax Purposes” prior to the close of business on the Business Day immediately preceding the applicable Settlement Date for such conversion, if and to the extent that such Holder (or, in the case of a Global Note, such beneficial owner) is legally able to comply with such request and due and timely compliance with such request is required by statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction in order to eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder or beneficial owner upon such conversion. If the Holder so converting (or, in case of a Global Note, the relevant beneficial owner acquiring beneficial ownership of the consideration due upon such conversion) receives a Final Settlement Method Election Notice within the applicable time period or no later than the applicable date, as the case may be, in each case as described in the immediately preceding sentence, such request will be deemed to be a “Timely Request” for purposes of Section 4.10(a)(i)(A)(3).
(i) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interestSpecial Interest, if any, except as set forth below in this Section 13.02(h)below, and the Company will not adjust the Conversion Rate for any accrued and unpaid interest Special Interest on any converted Notes. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interestSpecial Interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interestSpecial Interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and Common Ordinary Shares, accrued and unpaid interest Special Interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Special Interest Record Date, Holders of such Notes as of the close of business on such Regular Special Interest Record Date will receive the full amount of interest Special Interest payable on such Notes on the corresponding Special Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Special Interest Record Date to the open of business on the immediately following Special Interest Payment Date must be accompanied by funds equal to the amount of interest any Special Interest payable on the Notes so converted; provided, however, provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity DateOctober 15, 2025; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, shall receive the full interest payment due on Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date.
(i) The Person in whose name any Common Shares shall be issuable upon conversion shall be treated as a shareholder of record of such shares as of the close of business on the relevant Conversion Date (if Physical Settlement applies to such conversion) or as of the close of business on the last Trading Day of the relevant Observation Period (if Combination Settlement applies to such conversion), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional Common Share upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Common Share issuable upon conversion based on the Daily VWAP for the relevant Conversion Date, in the case of Physical Settlement, or based on the Daily VWAP for the last Trading Day of the relevant Observation Period, in the case of Combination Settlement. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be issuable upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.th
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Conversion Procedure; Settlement Upon Conversion. (a) Subject For any conversion of Notes, if the Company has not delivered to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) a written notice (a “Reserve Notice”) stating that the Company has duly authorized and reserved for issuance (by all necessary corporate action and arrangements with the transfer agent for the Common Stock) upon conversion of the Notes a number of authorized shares of Common Stock that have not been issued or reserved for any other purpose equal to the Maximum Number of Underlying Shares prior to the relevant Conversion Date (or, if earlier, the Observation Period Threshold Date in respect of all conversions for which clause (ii) of the definition of Observation Period applies) (such Conversion Date or other applicable earlier date in respect of such conversion, the “Flexible Settlement Deadline”, and the foregoing condition, the “Share Reservation Condition”), and subject to this Section 13.02Section 14.02, Section 13.03(bSection 14.03(b) and Section 13.07(aSection 14.07(a), the Company shall pay to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, solely an amount of cash as if the Company had elected Cash Settlement as set forth in this Section 14.02. The Share Reservation Condition shall be satisfied by delivery, at the Company’s option, of a Reserve Notice within 15 days of the date on which a number of shares of Common Stock equal to the Maximum Number of Underlying Shares has been duly authorized and reserved for issuance as set forth in this Section 14.02(a), and thereafter such Share Reservation Condition shall no longer have any force or effect under this Indenture or the Notes. Neither the Trustee nor the Conversion Agent shall have any obligation to monitor whether the Share Reservation Condition has been satisfied or whether the Flexible Settlement Deadline has occurred. If the Company has satisfied the Share Reservation Condition by delivering the Reserve Notice prior to the relevant Flexible Settlement Deadline, and subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying pay or deliveringdeliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with Section 13.02(jsubsection (j) of this Section 14.02 (“Physical Settlement”), ) or a combination of cash and shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with Section 13.02(jsubsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 13.02, subject to the requirements of Section 13.07Section 14.02.
(i) All conversions for which the relevant Conversion Date occurs during a Redemption Period shall be settled using the same Settlement Method, and all conversions for which the relevant Conversion Date occurs on or after December September 1, 2023 2024 shall be settled using the same Settlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs during a Redemption Period and any conversions for which the relevant Conversion Date occurs on or after December September 1, 20232024, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates.
(iii) IfFollowing satisfaction of the Share Reservation Condition prior to the applicable Flexible Settlement Deadline, if, in respect of any Conversion Date (or any conversion for which the relevant Conversion Date occurs during a Redemption Period on or after December 1period described in the third immediately succeeding set of parentheses, 2023as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), and the Company has not previously irrevocably elected a Settlement Method as described under Section 14.02(a)(vi), the Company, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions of any Notes for which the relevant Conversion Date occurs (A) during a Redemption Period, in the applicable Redemption Notice or (B) on or after December September 1, 20232024, no later than the close of business on the Business Day immediately preceding December September 1, 20232024). If the Share Reservation Condition has been satisfied by delivery of a Reserve Notice prior to the applicable Flexible Settlement Deadline and the Company does not elect a Settlement Method with respect to any conversion prior to the deadline set forth in the immediately preceding sentence, then unless the Company has previously irrevocably elected a Settlement Method as described under Section 14.02(a)(vi), the Company shall no longer have the right to elect Cash Settlement or Physical Settlement for such conversion and the Company shall be deemed to have elected the Default Combination Settlement Method in respect of such conversionits Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice, if provided, Notice shall specify the relevant Settlement Method and, and in the case of an election of Combination Settlement, the applicable relevant Settlement Notice shall indicate the Specified Dollar AmountAmount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. For the avoidance of doubt, the Company’s failure to so select a Settlement Method or Specified Dollar Amount when so permitted shall not constitute a Default or Event of Default under this Indenture or the Notes. By notice to the Holders, the Company may change the Default Settlement Method to any permitted Settlement Method, except it may not change the Default Settlement Method during any Redemption Period (in respect of Notes converted with a Conversion Date occurring during such Redemption Period) or on or after December 1, 2023 (in respect of Notes converted with a Conversion Date that occurs on or after December 1, 2023).
(iv) The cash, shares of Common Shares Stock or combination of cash and shares of Common Shares Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows follows:
(A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted:
(A) if Physical Settlement applies to such conversion, converted a number of shares of Common Shares Stock equal to the Conversion Rate in effect on the Conversion Date for such conversionDate;
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement applies to such conversionSettlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 25 20 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement applies to such conversionSettlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 25 20 consecutive Trading Days during the related Observation Period.
(v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Share, if anyStock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the sameDaily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(vi) The Company may, unless the Company has previously elected (or is deemed to have elected) a Settlement Method, at any time prior to any Conversion Date for any Note, and without the consent of the Holders, irrevocably elect a Settlement Method to apply in respect of such Notes converted following the date of the Company’s election; provided that the Company shall not irrevocably elect Combination Settlement or Physical Settlement prior to the satisfaction of the Share Reservation Condition. The Company will inform Holders, through the Trustee, of such election and, if Combination Settlement applies, the Specified Dollar Amount.
(b) Subject to Section 13.02(eSection 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the Applicable Procedures procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(hSection 14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Shares Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(hSection 14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 13 Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered for conversion by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 14.02Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b(b) above. Except as set forth in Section 13.03(bSection 14.03(b) and Section 13.07(aSection 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date (or, in respect of any Conversion Date occurring after the Regular Record Date immediately preceding the Maturity Date, on the Maturity Date), if the Company elects Physical Settlement appliesSettlement, or on the second Business Day immediately following the last Trading Day of the Observation Period, if in the case of any other Settlement Method appliesMethod. If any shares of Common Shares Stock are due to a converting Holder, the Company shall issue or cause to be issued, and deliver (or otherwise cause to be deliveredif applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of shares of Common Shares Stock to which such Holder shall be entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Shares Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Shares Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 13.04Section 14.04, no adjustment shall be made for dividends on any shares of Common Shares Stock issued upon the conversion of any Note as provided in this Article 1314.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below in this Section 13.02(h), and the Company will not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notesbelow. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common SharesStock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversionconversion (excluding cash payments for fractional shares). Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided, however, provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (43) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, Date shall receive the full interest payment due on the Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date.
(i) The Person in whose name any the shares of Common Shares Stock shall be issuable upon conversion shall be treated as a shareholder stockholder of record of such shares as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement applies to such conversionSettlement) or as of the close of business on the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement applies to such conversionSettlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional share of Common Share Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Common Share issuable upon conversion based on the Daily VWAP for the relevant Conversion Date, in the case of Physical Settlement, or based on the Daily VWAP for the last Trading Day of the relevant Observation Period, in the case of Combination Settlement. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be issuable upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.inst
Appears in 1 contract
Sources: Indenture (Enphase Energy, Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 13.02Section 14.02, Section 13.03(bSection 14.03(b) and Section 13.07(aSection 14.07(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying pay or deliveringdeliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with Section 13.02(jsubsection (j) of this Section 14.02 (“Physical Settlement”), ) or a combination of cash and shares of Common SharesStock, togethertogether with cash, if applicable, with cash in lieu of delivering any fractional share of Common Share Stock in accordance with Section 13.02(jsubsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 13.02, subject to the requirements of Section 13.07Section 14.02.
(i) All conversions of Called Notes for which the relevant Conversion Date occurs during a the related Redemption Period shall be settled using the same Settlement Method, and all conversions for which the relevant Conversion Date occurs on or after December 1August 15, 2023 2027 shall be settled using the same Settlement Method.
(ii) Except for any conversions of Called Notes for which the relevant Conversion Date occurs during a the related Redemption Period Period, and any conversions of Notes for which the relevant Conversion Date occurs on or after December 1August 15, 20232027, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates.
(iii) If, in respect of any Conversion Date (or any conversion for which one of the relevant Conversion Date occurs during a Redemption Period on or after December 1periods described in the third immediately succeeding set of parentheses, 2023as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company Company, shall deliver such Settlement Notice to converting Holders Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of (x) any conversions of any Called Notes for which the relevant Conversion Date occurs (A) during a the related Redemption Period, in the applicable related Redemption Notice or (By) any conversions on or after December 1August 15, 20232027, no later than the close of business on the Business Day immediately preceding December 1August 15, 20232027). If the Company does not elect a Settlement Method with respect to any conversion prior to the deadline set forth in the immediately preceding sentence, then the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected the Default Combination Settlement Method in respect of such conversionits Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice, if provided, Notice shall specify the relevant Settlement Method and, and in the case of an election of Combination Settlement, the applicable relevant Settlement Notice shall indicate the Specified Dollar AmountAmount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. For the avoidance of doubt, the Company’s failure to so select a Settlement Method or Specified Dollar Amount when so permitted shall not constitute a Default or Event of Default under this Indenture or the Notes. By notice to the Holders, the Company may change the Default Settlement Method to any permitted Settlement Method, except it may not change the Default Settlement Method during any Redemption Period (in respect of Notes converted with a Conversion Date occurring during such Redemption Period) or on or after December 1, 2023 (in respect of Notes converted with a Conversion Date that occurs on or after December 1, 2023).
(iv) The cash, shares of Common Shares Stock or combination of cash and shares of Common Shares Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows follows:
(A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted:
(A) if Physical Settlement applies to such conversion, converted a number of shares of Common Shares Stock equal to the Conversion Rate in effect on the applicable Conversion Date for such conversionDate;
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement applies to such conversionSettlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 25 40 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement applies to such conversionSettlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 25 40 consecutive Trading Days during the related Observation Period.
(v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Share, if anyStock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the sameDaily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(vi) By notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to August 15, 2027, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through any Settlement Method that the Company is then permitted to elect for all Conversion Dates occurring subsequent to delivery of such notice. Concurrently with providing notice to all Holders, the Trustee and the Conversion Agent (if other than the Trustee) of an election to irrevocably fix the Settlement Method, the Company shall promptly file with or furnish to the Commission a Current Report on Form 8-K disclosing, issue a press release announcing or post on the Company’s website an announcement, that the Company has elected to irrevocably fix the Settlement Method (and describing such Settlement Method). Notwithstanding the foregoing, no such irrevocable election shall affect any Settlement Method theretofore elected (or deemed to be elected) with respect to any Note pursuant to this Section 14.02. For the avoidance of doubt, such an irrevocable election, if made, shall be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(g). However, the Company may nonetheless choose to execute such an amendment at its option.
(b) Subject to Section 13.02(eSection 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the Applicable Procedures procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(hSection 14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF “pdf” or other electronic transmission thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Shares Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to the interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(hSection 14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 13 Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered for conversion by a Holder thereof if such Holder ▇▇▇▇▇▇ has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 14.02Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b(b) above. Except as set forth in Section 13.03(bSection 14.03(b) and Section 13.07(aSection 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement appliesSettlement, or on the second Business Day immediately following the last Trading Day of the Observation Period, if in the case of any other Settlement Method appliesMethod. If any shares of Common Shares Stock are due to a converting Holder, the Company shall issue or cause to be issued, and deliver (or otherwise cause to be deliveredif applicable) to the Conversion Agent or to such converting Holder, or such Holder’s nominee or nominees, the full number of shares of Common Shares Stock to which such Holder shall be entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Shares Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Shares Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 13.04Section 14.04, no adjustment shall be made for dividends on any shares of Common Shares Stock issued upon the conversion of any Note as provided in this Article 1314.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below in this Section 13.02(h), and the Company will not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notesbelow. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common SharesStock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of at the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided, however, provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, Date shall receive the full interest payment due on the Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date.
(i) The Person in whose name any the shares of Common Shares Stock shall be issuable upon conversion shall be treated as a shareholder stockholder of record of such shares as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement applies to such conversionSettlement) or as of the close of business on the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement applies to such conversionSettlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional share of Common Share Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Share Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date, Date (in the case of Physical Settlement, ) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period, Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be issuable issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract