Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 11.02, Section 11.03(b) and Section 11.07(a), upon conversion of any Note, 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, cash (“Cash Settlement”), Common Shares, together with cash, if applicable, in lieu of delivering any fractional Common Shares in accordance with subsection (j) of this Section 11.02 (“Physical Settlement”) or a combination of cash and Common Shares, together with cash, if applicable, in lieu of delivering any fractional Common Shares in accordance with subsection (j) of this Section 11.02 (“Combination Settlement”), at its election, as set forth in this Section 11.02. (i) All conversions for which the relevant Conversion Date occurs on or after September 1, 2025 shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs on or after September 1, 2025, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion Date (or the period described in the third immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the 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 for which the relevant Conversion Date occurs on or after September 1, 2025, no later than September 1, 2025). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. 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 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 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 need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such 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: (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 number of Common Shares equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, 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 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, 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 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 11.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the 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 11.02(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 thereof) (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 11.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered 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 12.03. 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 11.03(b) and Section 11.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any Common Shares are due to converting Holders, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of Common Shares to which such Holder shall be entitled, in certificate form or in book-entry format, 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 11.04, no adjustment shall be made for dividends on any Common Shares issued upon the conversion of any Note as provided in this Article 11. (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, and the Company shall not adjust the Conversion Rate to adjust for any accrued and unpaid interest on 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 excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and 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 such Interest Payment Date, on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a 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 (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts exist at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the Common Shares shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects (or is deemed to have elected) to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional Common Shares upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Common Shares issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of Common Shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional 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 ~~11.02~~14.02, Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), upon conversion of any Note, 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, cash (“Cash Settlement”), ~~Common~~ Class A Shares, together with cash, if applicable, in lieu of delivering any fractional ~~Common Shares~~ Class A Share in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Physical Settlement”) or a combination of cash and ~~Common~~ Class A Shares, together with cash, if applicable, in lieu of delivering any fractional ~~Common Shares~~ Class A Share in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~14.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~September 1~~the Company’s issuance of a Redemption Notice with respect to the Notes but prior to the related Redemption Date, ~~2025~~ and all conversions for which the relevant Conversion Date occurs on or after June 15, 2018, shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs on or after ~~September 1~~the Company’s issuance of a Redemption Notice with respect to the Notes but prior to the related Redemption Date, ~~2025~~and any conversions for which the relevant Conversion Date occurs on or after June 15, 2018, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions ~~with~~ that occur on different Conversion Dates. (iii) If, in respect of any Conversion Date (or one of the ~~period~~ periods described in the ~~third~~ fourth immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a written notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the 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 ~~second~~ Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs (x) on or after ~~September 1~~the Company’s issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date, ~~2025~~in such Redemption Notice, or (y) on or after June 15, 2018, no later than ~~September 1~~June 15, ~~2025~~2018). 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 deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. 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 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 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 need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its option. (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: (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 number of ~~Common~~ Class A Shares equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 40 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, 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 50 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, 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 the amount of cash payable in lieu of delivering any fractional ~~Common Shares~~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 ~~11.02(e~~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 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 ~~11.02(h~~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 thereof) (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 ~~11.02(h~~14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered 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 ~~12.03~~15.03. 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~~, 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 ~~11.03(b~~14.03(b) and in Section ~~11.07(a~~14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the ~~second~~ third Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the ~~second~~ third Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any ~~Common~~ Class A Shares are due to converting Holders, the Company shall issue or cause to be issued, and deliver ~~(if applicable)~~ to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of ~~Common~~ Class A Shares to which such Holder shall be ~~entitled, in certificate form or in book-entry format,~~ entitled 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~~ 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 ~~11.04~~14.04, 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 1114. (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~~, and the Company shall not adjust the Conversion Rate to adjust for any accrued and unpaid interest on 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 ~~excluding~~not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~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 such Interest Payment Date,~~ payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the 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 (34) to the extent of any Defaulted Amounts, if any Defaulted Amounts exist at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the ~~Common~~ certificate for any Class A Shares ~~shall be issuable~~ delivered upon conversion is registered shall be treated as a ~~stockholder~~ shareholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional ~~Common Shares~~ Class A Share upon conversion of the Notes and shall instead pay cash in lieu of ~~delivering~~ any fractional ~~Common Shares~~ Class A Share issuable upon conversion based on the Daily VWAP ~~for~~ on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP ~~for~~ on the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of ~~Common Shares~~ shares that shall be 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 ~~Common Shares~~ shares remaining after such computation shall be paid in cash.

Appears in 2 contracts

Sources: Indenture (Yandex N.V.), Indenture (Yandex N.V.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~14.02, Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), upon conversion of any Note, the Company shall ~~pay~~ satisfy its Conversion Obligation by paying or ~~deliver~~delivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~14.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~September 1~~July 15, ~~2025~~ 2029, shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs on or after ~~September 1~~July 15, ~~2025~~2029, 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 of the period described in the third immediately succeeding set of parentheses, as 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, 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 Notes for which the relevant Conversion Date occurs on or after ~~September 1~~July 15, ~~2025~~2029, no later than ~~September 1~~the close of business on the Business Day immediately preceding July 15, ~~2025~~2029). If the Company does not timely elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement for such conversion or during such period and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $~~1,000~~1,000 (the “Default Settlement Method”). Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount 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~~ timely notify converting Holders of the Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. By notice to 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 need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its option. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, 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 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~~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 the amount of cash payable in lieu of delivering fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~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 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 ~~11.02(h~~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~~ facsimile, PDF or other electronic transmission thereof) (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 ~~11.02(h~~14.02(h). The Trustee (~~and~~ and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 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 ~~12.03~~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~~, 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 ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the second Business Day immediately following the last Trading Day of the relevant Observation Period, in the case of any other Settlement Method; provided that, with respect to any Conversion Date occurring 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 shares of Common ~~Shares~~ Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver ~~(if applicable) to the Conversion Agent or~~ to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be ~~entitled, in certificate form or in book-entry format,~~ entitled 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 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 ~~11.04~~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 1114. (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~~, and the Company shall not adjust the Conversion Rate to adjust for any accrued and unpaid interest on 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 excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and 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 such Interest Payment Date,~~ payable on the Notes so ~~converted~~converted (regardless of whether the converting Holder was the Holder of record on the corresponding Regular Record Date); provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a 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 (3) to the extent of any ~~Defaulted Amounts~~overdue interest, if any ~~Defaulted Amounts exist~~ overdue interest exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the 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 stockholder~~ 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) or the last Trading Day of the relevant Observation Period (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common ~~Shares~~ Stock issuable upon conversion based on the Daily VWAP ~~for~~ on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP ~~for~~ on the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of ~~Common Shares~~ shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional ~~Common Shares~~ shares remaining after such computation shall be paid in cash. (k) If a Holder converts more than one Note on a Conversion Date, then the consideration due upon such conversion will (in the case of any Global Note, to the extent permitted by, and practicable under, the applicable procedures of the Depositary) be computed based on the total principal amount of Notes converted on such Conversion Date by that Holder. (l) In addition, the Company may, by notice to Holders, the Trustee and the Conversion Agent, irrevocably elect Combination Settlement with a $1,000 Specified Dollar Amount per $1,000 principal amount of Notes or may irrevocably elect that any Specified Dollar Amount per $1,000 principal amount of Notes will be at or above a specific amount (the “Minimum Specified Amount”) set forth in such notice. If the Company makes such an irrevocable election, then such election will apply to all conversions of Notes with a Conversion Date that is on or after the date the Company sends such notice. For the avoidance of doubt, 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(l) or Section 10.01(i) and such an irrevocable election, if made, will be effective without the need to amend the Indenture or the Notes, including pursuant to Article 10. However, the Company may nonetheless choose to execute such an amendment at its option. (m) Notwithstanding anything in this Indenture to the contrary, the Company will not be obligated to deliver any shares of Common Stock to any Holder upon any conversion of a Note such that such Holder would beneficially own a number of shares of Common Stock in excess of the Conversion Share Cap immediately following any conversion. To the extent a

Appears in 2 contracts

Sources: Indenture (Brookdale Senior Living Inc.), Indenture (Brookdale Senior Living Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~14.02, Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), upon conversion of any Note, 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, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~14.02. (i) All conversions of Notes for which the relevant Conversion Date occurs on or after ~~September 1~~June 15, ~~2025~~ 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 the related Redemption Period and any conversions for which the relevant Conversion Date occurs on or after ~~September 1~~June 15, ~~2025~~2027, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion Date (or the period described in the ~~third~~ fourth immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a written notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the ~~Company, through the Trustee,~~ 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 ~~second~~ Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions of Notes (x) called for redemption (or deemed called for redemption pursuant to Section 14.01(b)(ii)) for which the relevant Conversion Date occurs during the related Redemption Period, in such Redemption Notice, (y) for which the relevant Conversion Date occurs on or after ~~September 1~~June 15, ~~2025~~2027, no later than ~~September 1~~June 15, ~~2025~~2027 or (z) for which the Company has irrevocably elected Physical Settlement pursuant to Section 14.01(b)(iii), in the related Certain Distributions Notification) (in each case, the “Settlement Method Election Deadline”). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect ~~Cash~~ a Settlement Method with respect to any conversion on such Conversion Date or ~~Physical Settlement~~ during such period, and the Company shall be deemed to have elected ~~Combination~~ the Default Settlement in Method with respect ~~of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal~~ to ~~$1,000~~such conversion. ~~Such~~ Any Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company ~~delivers a Settlement Notice electing~~ timely elects Combination Settlement in (or is deemed to have elected Combination Settlement) with respect ~~of its Conversion Obligation~~ to a conversion but does not ~~indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice,~~ timely notify 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~~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 $1,000 per $1,000 principal amount of Notes. For the avoidance of doubt, the Company’s failure to timely elect a Settlement Method or specify the applicable Specified Dollar Amount shall not constitute a default under this Indenture. The Company may, by notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) prior to ~~September 1~~June 15, ~~2025, at its option~~2027, irrevocably ~~elect~~ fix the Settlement Method, to ~~satisfy its Conversion Obligation with respect~~ any Settlement Method that the Company is then permitted to ~~the Notes through a~~ elect, including Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 ~~for~~ 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 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 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~~. Not later than three Business Days after providing notice to Holders~~; provided, however, that no such change in the ~~Trustee and the Conversion Agent (if other than the Trustee) of an~~ Default Settlement Method or irrevocable election shall affect any Settlement Method theretofore elected (or deemed to be elected) 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 electionany conversion. For the avoidance of doubt, such an irrevocable election, if made, ~~will~~ shall be effective without the need to amend this ~~Second Supplemental~~ Indenture or the Notes, including pursuant to the provisions described in Section ~~9.02(i~~10.01(l). However, the Company ~~may, nonetheless,~~ may nonetheless choose to execute such an amendment at ~~its~~ 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: (A) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion ~~Date~~Date (plus cash in lieu of any fractional share of Common Stock issuable upon conversion); (B) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 20 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, 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 50 20 consecutive Trading Days during the related Observation ~~Period~~Period (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~~Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) in writing of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~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 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 ~~11.02(h~~14.02(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 thereof) (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 ~~11.02(h~~14.02(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 11 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered 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 ~~12.03~~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~~, 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 ~~11.03(b~~14.03(b) and Section ~~11.07(a~~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 to satisfy its Conversion Obligation through Physical ~~Settlement~~Settlement (provided that, with respect to any Conversion Date following the Regular Record Date immediately preceding the Maturity Date where Physical Settlement applies to the related conversion, the Company 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, in if the ~~case of~~ Company elects to satisfy its Conversion Obligation through any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to a converting ~~Holders~~Holder, the Company shall issue or cause to be issued, and deliver (if 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 ~~certificate form or in~~ book-entry ~~format~~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 (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 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 ~~11.04~~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 1114. (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~~, and the Company shall not adjust the Conversion Rate to adjust for any accrued and unpaid interest on 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 ~~excluding~~not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date but prior to the open of business on the immediately following Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will 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 such Interest Payment Date,~~ payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and converted on ~~or prior to the Business Day immediately following~~ the corresponding Interest Payment ~~Date; or~~ Date (~~3) to~~ regardless of whether the ~~extent of any Defaulted Amounts, if any Defaulted Amounts exist at~~ converting Holder was 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 the Maturity Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the Common Shares shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects (or is deemed to have elected) to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional Common Shares upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Common Shares issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of Common Shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional Common 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.)

Appears in 2 contracts

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

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~14.02, Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), upon conversion of any Note, 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, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~14.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~September 1~~April 15, ~~2025~~ 2023 and all conversions for which the relevant Conversion Date occurs 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 ~~September 1~~April 15, ~~2025~~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 ~~the period described~~ in the ~~third immediately succeeding set~~ case of ~~parentheses~~any conversions occurring (x) on or after April 15, ~~as the case may be~~2023 or (y) during a Redemption Period), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the 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 ~~for which the relevant Conversion Date occurs~~ occurring (x) during a Redemption Period, in such Redemption Notice or (y) on or after ~~September 1~~April 15, ~~2025~~2023, no later than ~~September 1~~the close of business on the Business Day immediately preceding April 15, ~~2025~~2023). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. 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 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 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)~~Holders, the Company may, prior to ~~September 1~~April 15, ~~2025~~2023, 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 need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its option. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion ~~Date;~~Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, 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 50 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, the Company shall pay or deliver, as the case may be, 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 50 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~~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 the amount of cash payable in lieu of delivering fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~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 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 ~~11.02(h~~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 thereof) (a notice pursuant to the applicable 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 ~~11.02(h~~14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered 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 ~~12.03~~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~~, 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 ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or or, in the case of any other Settlement Method, on the second Business Day immediately following the last Trading Day of the Observation Period~~, in the case of any other Settlement Method~~. If any shares of Common ~~Shares~~ Stock are due to a converting ~~Holders~~Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be entitled, in certificate form or in book-entry format, 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~~ 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 ~~11.04~~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 1114. (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~~, and the Company shall not adjust the Conversion Rate to adjust for any accrued and unpaid interest on 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 ~~excluding~~not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so ~~converted;~~ 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; (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 (34) to the extent of any Defaulted Amounts, if any Defaulted Amounts ~~exist~~ exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the shares of Common ~~Shares~~ Stock shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common ~~Shares~~ Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of ~~Common Shares~~ shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional ~~Common Shares~~ shares remaining after such computation shall be paid in cash.

Appears in 2 contracts

Sources: Indenture (Redfin Corp), Indenture (Redfin Corp)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~14.02, Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), upon conversion of any Note, the Company shall ~~pay~~ satisfy its Conversion Obligation by paying or ~~deliver~~delivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~14.02. (i) All conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Notice of Redemption with respect to the Notes and prior to the related Redemption Date, and all conversions for which the relevant Conversion Date occurs on or after ~~September 1~~June 15, ~~2025~~ 2023, shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Notice of Redemption with respect to the Notes but prior to the related Redemption Date, and any conversions for which the relevant Conversion Date occurs on or after ~~September 1~~June 15, ~~2025~~2023, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion Date (or any conversions for which the ~~period described in~~ relevant Conversion Date occurs after the ~~third immediately succeeding set~~ Company’s issuance of ~~parentheses~~a Notice of Redemption with respect to the Notes and prior to the related Redemption Date, as or for which the ~~case may be~~relevant Conversion Date occurs on or after June 15, 2023), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the 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 for which the relevant Conversion Date occurs (x) after the date of issuance of a Notice of Redemption with respect to the Notes and prior to the related Redemption Date, in such Notice of Redemption or (y) on or after ~~September 1~~June 15, ~~2025~~2023, no later than ~~September 1~~June 15, ~~2025~~2023). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to any conversion on such Conversion Date or during such period, and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. 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 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)~~all Holders, the Company may, prior to ~~September 1~~June 15, ~~2025~~2023, 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 need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its option. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 30 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 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~~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 the amount of cash payable in lieu of delivering fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~11.02(h~~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~~ 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 ~~11.02(h~~14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 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 ~~12.03~~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~~, 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 ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical ~~Settlement~~Settlement (provided that, with respect to any Conversion Date following the Regular Record Date immediately preceding the Maturity Date where Physical Settlement applies to the related conversion, the Company shall settle any such conversion on the Maturity Date), or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to a converting ~~Holders~~Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be entitled, in ~~certificate form or in~~ book-entry ~~format~~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 (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 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 ~~11.04~~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 1114. (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~~, and the Company shall not adjust the Conversion Rate to adjust for any accrued and unpaid interest on 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 ~~excluding~~not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (34) to the extent of any Defaulted Amounts, if any Defaulted Amounts ~~exist~~ exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the shares of Common ~~Shares~~ Stock shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common ~~Shares~~ Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of ~~Common Shares~~ shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional ~~Common Shares~~ shares remaining after such computation shall be paid in cash.

Appears in 2 contracts

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

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~14.02, Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), upon conversion of any Note, 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, cash (“Cash Settlement”), ~~Common Shares~~shares of Class C Capital Stock, together with cash, if applicable, in lieu of delivering any fractional ~~Common Shares~~ share of Class C Capital Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Physical Settlement”) or a combination of cash and ~~Common Shares~~shares of Class C Capital Stock, together with cash, if applicable, in lieu of delivering any fractional ~~Common Shares~~ share of Class C Capital Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~14.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~September~~ March 1, ~~2025~~ 2026, and all conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date, shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption 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 ~~September~~ March 1, ~~2025~~2026, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion Date (or one of the ~~period~~ periods described in the third immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the 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 for which the relevant Conversion Date occurs (x) 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 or (y) on or after ~~September~~ March 1, ~~2025~~2026, no later than ~~September~~ March 1, ~~2025~~2026). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. 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 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 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 need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its option. (iv) The cash, ~~Common Shares~~ shares of Class C Capital Stock or combination of cash and ~~Common Shares~~ shares of Class C Capital Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of ~~Common Shares~~ shares of Class C Capital Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 40 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, 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 50 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~~share of Class C Capital 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 the amount of cash payable in lieu of delivering fractional ~~Common Shares~~shares of Class C Capital Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~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 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 ~~11.02(h~~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 thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ~~Common Shares~~ shares of Class C Capital Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~11.02(h~~14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered 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 ~~12.03~~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~~, 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 ~~11.03(b~~14.03(b) and Section 11.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any Common Shares are due to converting Holders, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of Common Shares to which such Holder shall be entitled, in certificate form or in book-entry format, 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 11.04, no adjustment shall be made for dividends on any Common Shares issued upon the conversion of any Note as provided in this Article 11. (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, and the Company shall not adjust the Conversion Rate to adjust for any accrued and unpaid interest on 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 excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and 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 such Interest Payment Date, on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a 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 (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts exist at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the Common Shares shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects (or is deemed to have elected) to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional Common Shares upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Common Shares issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of Common Shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional Common Shares remaining after such computation shall be paid in cash.and

Appears in 1 contract

Sources: Indenture (Zillow Group, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~14.02, Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), upon conversion of any Note, the Company ~~shall~~ shall, at its election, pay or deliver, as the case may be, to the converting Holder, in ~~respect~~ full satisfaction of ~~each $1,000 principal amount of Notes being converted~~its Conversion Obligation, cash (“Cash Settlement”), shares of the Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with ~~subsection (j~~Section 14.02(i) ~~of this Section 11.02~~ (“Physical Settlement”) ), or a combination of cash and shares of the Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with ~~subsection (j~~Section 14.02(i) ~~of this Section 11.02~~ (“Combination Settlement”), ~~at its election,~~ as set forth in this Section ~~11.02~~14.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~September~~ August 1, ~~2025~~ 2026 and all conversions for which the Conversion Date occurs on or after the Redemption Notice Date and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date 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 on or after ~~September~~ August 1, ~~2025~~2026 and all conversions for which the Conversion Date occurs on or after the Redemption Notice Date and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date, the Company shall use the same Settlement Method (including the same relative proportion of cash and/or shares of the Common Stock) for all conversions ~~with~~ that occur on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions ~~with~~ that occur on different Conversion Dates. (~~iii~~ii) ~~If, in respect of any Conversion Date (or~~ If the ~~period described in the third immediately succeeding set of parentheses, as the case may be)~~Company elects a Settlement Method, the Company ~~elects~~ shall deliver notice to ~~deliver a notice (~~Holders so converting through the ~~“Settlement Notice”)~~ Conversion Agent of ~~the relevant~~ such Settlement Method ~~in respect of such Conversion Date (or such period, as~~ the ~~case may be), the Company, through the Trustee, shall deliver such Settlement Notice to converting Holders~~ Company has selected no later than the close of business on the ~~second~~ VWAP Trading Day immediately following the ~~relevant~~ related Conversion Date (~~or,~~ or (i) in the case of any conversions for which the relevant Conversion Date occurs on or after ~~September~~ August 1, ~~2025~~2026, no later than ~~September~~ August 1, ~~2025~~2026 or (ii) in the case of any conversions occurring on or after the date of a Notice of Redemption and prior to the close of business on the second Scheduled Trading Day immediately preceding the Redemption Date, in such Notice of Redemption). If the Company does not timely elect a Settlement ~~Method prior to the deadline set forth in the immediately preceding sentence~~Method, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to that Conversion Date and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. ~~Such~~ If the Company has timely elected Combination Settlement ~~Notice shall specify~~ in respect of any conversion but does not timely notify the ~~relevant Settlement Method and in the case~~ Conversion Agent 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 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 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 need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such 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: (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 number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate ~~in effect~~ on the Conversion ~~Date~~Date (plus cash in lieu of any fractional share of Common Stock issuable upon conversion); (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 20 consecutive VWAP Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being ~~converted,~~ converted a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 20 consecutive VWAP Trading Days during the related Observation ~~Period~~Period (plus cash in lieu of any fractional share of Common Stock issuable upon conversion). 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 hereby) so surrendered. (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~~ 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~~ and, if applicable, the amount of cash payable in lieu of ~~delivering~~ any fractional share of Common ~~Share~~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~~ and, if applicable, the amount of cash payable in lieu of ~~delivering~~ fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (bi) ~~Subject to Section 11.02(e~~To convert a beneficial interest in a Global Note (which conversion is irrevocable), ~~before any Holder~~ the holder of ~~a Note shall be entitled to convert a Note as set forth above,~~ such ~~Holder shall~~ beneficial interest must: (iA) ~~in the case of a Global Note,~~ comply with the ~~procedures of the Depositary in effect at that time and,~~ 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 ~~11.02(h) and~~ 14.02(g); and (ii) in To convert a Certificated Note, the ~~case of a Physical Note~~ Holder must: (1A) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile thereof) (a “Notice of Conversion”) ~~at the office of the Conversion Agent~~ and ~~state in writing therein the principal amount of Notes~~ such Note 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, ; (3B) if required, furnish appropriate endorsements and transfer ~~documents and~~ documents; (4C) 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 ~~11.02(h~~14.02(g). The Trustee (and if different, the Conversion Agent) ), upon receiving notice of any conversion, shall notify the Company of any conversion pursuant to this Article 11 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. ~~No Notice of Conversion with respect to any Notes may be surrendered by~~ If a Holder ~~thereof if such Holder~~ has ~~also~~ already delivered a Fundamental Change ~~Repurchase~~ Purchase Notice with respect to ~~the Company in respect of~~ a Note, such ~~Notes and~~ Holder may not surrender such Note for conversion until such Holder has ~~not~~ validly withdrawn such Fundamental Change ~~Repurchase~~ Purchase Notice in accordance with Section 12.03. 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~~or, in the case of a Global ~~Notes~~Note, has complied with the Applicable Procedures with respect to such a withdrawal) in accordance with the ~~rules~~ terms of Section 15.03. If a Holder has already delivered a Fundamental Change Purchase Notice, such Holder’s right to withdraw such notice and convert the ~~applicable Depositary~~Notes that are subject to repurchase will terminate at the close of business on the Business Day immediately preceding the relevant Fundamental Change Purchase Date. If the Company has designated a Redemption Date pursuant to Section 16.02, a Holder that complies with the requirements for conversion set forth in this Section 14.02(b) shall be deemed to have delivered a notice of its election not to have its Notes so redeemed. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in ~~subsection (b) above~~Section 14.02(b). ~~Except as set forth in~~ Subject to the next paragraph and the provisions of Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), the Company shall pay or deliver, as the case may be, the ~~consideration~~ Settlement Amount due in respect of the Conversion Obligation on no later than: (i) the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement~~, or on~~ ; or (ii) the second Business Day immediately following the last VWAP Trading Day of the relevant Observation Period, in if the ~~case of any other~~ Company elects Cash Settlement ~~Method~~or if the Company elects or is deemed to elect Combination Settlement. If any shares of Common ~~Shares~~ Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver ~~(if applicable) to the Conversion Agent or~~ to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary, as the case may be, for the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be ~~entitled, in certificate form or in book-entry format,~~ 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 (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~~ issuance of any shares of Common ~~Shares~~ Stock upon ~~conversion~~conversion of such Note, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common ~~Shares~~ Stock being issued in a name other than the Holder’s name until the 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 11.04, no adjustment shall be made for dividends on any Common Shares issued upon the conversion of any Note as provided in this Article 11. (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 ~~conversion~~conversion of a Note, a the converting Holder shall not receive any separate cash payment ~~for~~ representing accrued and unpaid interest, if any, except as set forth in the paragraph below~~, and the Company shall not adjust the Conversion Rate to adjust for any accrued and unpaid interest on the Notes~~. 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 ~~excluding~~not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~not including, the relevant Conversion Date shall be deemed to be paid in full rather than ~~cancelled~~canceled, extinguished or ~~forfeited~~forfeited (other than in the circumstances described under Section 14.01(b)(v)). Upon a conversion of Notes into a combination of cash and shares of Common ~~Shares~~Stock, accrued and unpaid interest ~~will~~ shall be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the ~~foregoing~~immediately preceding paragraph, if Notes are converted after the close of business on a Regular Record Date for the payment of interest and prior to the open of business on the immediately following Interest Payment Date, Holders of such Notes ~~as of~~ at the close of business on such Regular Record Date ~~will~~ shall receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so ~~converted~~converted on the corresponding Interest Payment Date (regardless of whether the converting Holder was the Holder of record on the corresponding Regular Record Date); provided that no such payment ~~shall~~ need be ~~required~~ made: (1i) if the Notes are surrendered for ~~conversions~~ conversion following the Regular Record Date immediately preceding the Maturity Date; ; (2ii) if the Company has specified a Fundamental Change ~~Repurchase~~ Purchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (iii) if the Company has specified a Redemption Date in accordance with Article 16 that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or or (3iv) to the extent of any ~~Defaulted Amounts~~overdue interest, if any ~~Defaulted Amounts exist~~ overdue interest exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date and any Fundamental Change Purchase Date as described in clause (ii) above, shall receive and retain the full interest payment due on the Maturity Date or other applicable Interest Payment Date regardless of whether their Notes have been converted following such Regular Record Date. (ih) The Person in whose name ~~the~~ any shares of Common ~~Shares~~ Stock shall be issuable upon conversion is registered shall be treated as ~~a stockholder~~ the holder of record of such shares as of the close of business on (i) the relevant Conversion Date (if the Company elects ~~to satisfy the related Conversion Obligation by~~ Physical ~~Settlement~~Settlement or (ii) or the last VWAP Trading Day of the relevant Observation Period (if the Company elects (or is deemed to ~~have elected) to satisfy the related Conversion Obligation by~~ elect Combination Settlement~~), as the case may be~~. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion; provided that (a) the converting Holder shall have the right to receive the Settlement Amount due upon conversion and (b) in the case of a conversion between a Regular Record Date and the corresponding Interest Payment Date, the Holder of record as of the close of business on such Regular Record Date shall have the right to receive the interest payable on such Interest Payment Date, in accordance with Section 14.02(g). (ji) The Company shall not issue any fractional share of Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of ~~delivering~~ any fractional share of Common ~~Shares~~ Stock issuable upon conversion in an amount based on (i) the Daily VWAP ~~for~~ on the relevant Conversion Date if the Company elects Physical Settlement or (~~in the case of Physical Settlement~~ii) ~~or based on~~ the Daily VWAP ~~for~~ on the last VWAP Trading Day of the relevant Observation Period ~~(in~~ if the ~~case of~~ Company elects or is deemed to elect Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to elect) Combination Settlement, the full number of ~~Common Shares~~ shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period ~~and~~ and, if applicable, any fractional ~~Common Shares~~ share remaining after such computation shall be paid in cash.

Appears in 1 contract

Sources: Indenture (United States Steel Corp)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~13.02, Section ~~11.03(b~~13.03(b) and Section ~~11.07(a~~13.07(a), upon conversion of any Note, the Company shall pay or ~~deliver~~deliver (or otherwise cause to be delivered), as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, ~~together with cash~~together, if applicable, with cash in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with ~~subsection (j~~Section 13.02(j) ~~of this Section 11.02~~ (“Physical Settlement”) ), or a combination of cash and shares of Common ~~Shares~~Stock, ~~together with cash~~together, if applicable, with cash in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with ~~subsection (j~~Section 13.02(j) ~~of this Section 11.02~~ (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~13.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~September 1~~the date of the Company’s issuance of a Redemption Notice with respect to any Notes and prior to the related Redemption Date, and all conversions for which the relevant Conversion Date occurs on or after November 3, 2025 shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice 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 ~~September 1~~November 3, 2025, and except to the extent the Company elects Physical Settlement to apply pursuant to Section 13.01(b)(ii), the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion Date (or one of the ~~period~~ periods described in the third immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the ~~Company, through the Trustee,~~ Company 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 (x) of any Notes for which the relevant Conversion Date occurs (A) on or after ~~September 1~~the date of issuance of a Redemption Notice and prior to the related Redemption Date, in such Redemption Notice or (B) on or after November 3, 2025, no later than ~~September 1~~the close of business on the Business Day immediately preceding November 3, 2025, (y) for which the Company has irrevocably elected Physical Settlement pursuant to Section 13.01(b)(ii), in the related notice described therein or (z) for which the Company has made an Irrevocable Election pursuant to this Section 13.02(a)(iii), in the Company’s notice of such Irrevocable Election to the Holders). If the Company does not elect a Settlement Method with respect to any conversion prior to the deadline set forth in the immediately preceding sentence, ~~the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and~~ then the Company shall be deemed to have elected ~~Combination~~ the Default 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~~such conversion. Such Settlement ~~Notice~~ Notice, if provided, shall specify the relevant Settlement Method ~~and~~ and, in the case ~~of an election~~ of Combination Settlement, the ~~relevant Settlement Notice shall indicate the~~ applicable Specified Dollar ~~Amount per $1,000 principal amount of Notes~~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 in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. By For the avoidance of doubt, the Company’s failure to so select a Settlement Method or Specified Dollar Amount when so permitted shall not constitute a Default or Event of Default under this Indenture or the Notes. Subject to Section 13.02(a)(iv), by notice to the Holders ~~of the Notes,~~ (with a copy to the Trustee and the Conversion ~~Agent (if other than the Trustee~~Agent), the Company may change the Default Settlement Method to any permitted Settlement Method. In addition, subject to Section 13.02(a)(iv), (A) the Company may, ~~prior to September 1, 2025, at its option, irrevocably elect to satisfy its Conversion Obligation with respect~~ by notice to the ~~Notes through a Combination Settlement~~ Holders (with a ~~Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 for all Conversion Dates occurring subsequent~~ copy 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~~Agent), ~~the Company~~ which notice shall ~~issue~~ be delivered by filing a Current Report on Form 8-K (or ~~press release or otherwise provide public disclosure in a manner compliant with Regulation FD announcing~~ successor form thereto), irrevocably elect to either (x) fix the Settlement Method to any Settlement Method that the Company ~~has made~~ 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~~Irrevocable Election to the Holders. For the avoidance of doubt, ~~such an irrevocable election~~any Irrevocable Election, if made, will be effective without the need to amend this ~~Second Supplemental~~ Indenture or the Notes, including pursuant to Section ~~9.02(i~~10.01(i). However, the Company ~~may, nonetheless,~~ may nonetheless choose to execute such an amendment at its option. (iv) Notwithstanding anything to the contrary in Section 13.02(a)(iii), the Company may not change the Default Settlement Method or make an Irrevocable Election (x) during any Redemption Period (in respect of Notes converted with a Conversion Date occurring during such Redemption Period), (y) for any conversions for which the Company has irrevocably elected Physical Settlement to apply pursuant to Section 13.01(b)(ii) or (z) on or after November 3, 2025 (in respect of Notes converted with a Conversion Date that occurs on or after November 3, 2025). (v) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as ~~follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder~~ follows in respect of each $1,000 principal amount of Notes being ~~converted~~ converted: (A) if Physical Settlement applies to such conversion, a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion ~~Date~~Date for such conversion; (B) if ~~the Company elects~~ Cash Settlement applies to ~~satisfy its Conversion Obligation in respect of~~ such ~~conversion by Cash Settlement~~conversion, ~~the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted~~ cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 40 consecutive VWAP Trading Days during the related Observation Period; and (C) if ~~the Company elects (or is deemed~~ Combination Settlement applies to ~~have elected) to satisfy its Conversion Obligation in respect of~~ such ~~conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted~~conversion, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 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, 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 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 ~~11.02(e~~13.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the 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 ~~11.02(h~~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 thereof) (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 ~~11.02(h~~13.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 13 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered 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 ~~12.03~~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~~, 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 ~~11.03(b~~13.03(b) and Section ~~11.07(a~~13.07(a), the Company shall pay or ~~deliver~~deliver (or otherwise cause to be delivered), as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if ~~the Company elects~~ Physical ~~Settlement~~Settlement applies, or on the second Business Day immediately following the last VWAP Trading Day of the Observation Period, ~~in the case of~~ if any other Settlement ~~Method~~Method applies; provided, however, that the Company shall settle on the Maturity Date (or, if the Maturity Date is not a Business Day, the immediately following Business Day) any conversions to which Physical Settlement applies and whose Conversion Date occurs on or after January 15, 2026. If any shares of Common ~~Shares~~ Stock are due to a converting ~~Holders~~Holder, the Company shall issue and deliver (or otherwise cause to be ~~issued, and deliver (if applicable~~delivered) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be entitled, in ~~certificate form or in~~ book-entry ~~format~~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 (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 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 ~~11.04~~13.04, no adjustment shall be made for dividends on any shares of Common ~~Shares~~ Stock issued upon the conversion of any Note as provided in this Article 1113. (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~~below in this Section 13.02(h), and the Company ~~shall~~ will not adjust the Conversion Rate ~~to adjust~~ for any accrued and unpaid interest on ~~the~~ 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 ~~excluding~~not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so converted; ~~provided~~ provided, however, that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a 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 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 (34) to the extent of any Defaulted Amounts, if any Defaulted Amounts ~~exist~~ exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record as of the close of business on the Regular Record Date immediately preceding the Maturity Date, or a Fundamental Change Repurchase Date or Redemption Date referred to above, shall receive the full interest payment due on the ~~Maturity~~ corresponding Interest Payment Date in cash regardless of whether their Notes have been converted following such Regular Record Date, and the converting Holder shall not be required to make a corresponding payment. (i) The Person in whose name ~~the~~ any shares of Common ~~Shares~~ Stock shall be issuable upon conversion shall be treated as a stockholder of record of such shares as of the close of business on the relevant Conversion Date (if ~~the Company elects~~ Physical Settlement applies to ~~satisfy the related Conversion Obligation by Physical Settlement~~such conversion) or as of the close of business on the last VWAP Trading Day of the relevant Observation Period (if ~~the Company elects (or is deemed~~ Combination Settlement applies to ~~have elected) to satisfy the related Conversion Obligation by Combination Settlement~~such conversion), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common ~~Shares~~ Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (or, if such conversion date is not a VWAP Trading Day, the immediately preceding VWAP Trading Day), in the case of Physical Settlement) , or based on the Daily VWAP for the last VWAP Trading Day of the relevant Observation ~~Period (~~Period, in the case of Combination Settlement). ~~For~~ Subject to any procedures or requirements of the applicable Depositary in the case of any Global Note, for each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of ~~Common Shares~~ shares that shall be ~~issued~~ deliverable upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional ~~Common Shares~~ 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 ~~11.02~~14.02, Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), upon conversion of any Note, the Company shall ~~pay~~ satisfy its Conversion Obligation by paying or ~~deliver~~delivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~14.02. (i) All conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Notice of Redemption with respect to the Notes and prior to the related Redemption Date, and all conversions for which the relevant Conversion Date occurs on or after ~~September~~ December 1, ~~2025~~ 2022, shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Notice of Redemption with respect to the Notes but prior to the related Redemption Date, and any conversions for which the relevant Conversion Date occurs on or after ~~September~~ December 1, ~~2025~~2022, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion Date (or any conversions for which the ~~period described in~~ relevant Conversion Date occurs after the ~~third immediately succeeding set~~ Company’s issuance of ~~parentheses~~a Notice of Redemption with respect to the Notes and prior to the related Redemption Date, as or for which the ~~case may be~~relevant Conversion Date occurs on or after December 1, 2022), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the 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 for which the relevant Conversion Date occurs (x) after the date of issuance of a Notice of Redemption with respect to the Notes and prior to the related Redemption Date, in such Notice of Redemption or (y) on or after ~~September~~ December 1, ~~2025~~2022, no later than ~~September~~ December 1, ~~2025~~2022). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to any conversion on such Conversion Date or during such period, and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. 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 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)~~all Holders, the Company may, prior to ~~September~~ December 1, ~~2025~~2022, 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 need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its option. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 40 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 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~~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 the amount of cash payable in lieu of delivering fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~11.02(h~~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~~ 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 ~~11.02(h~~14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 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 ~~12.03~~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~~, 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 ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical ~~Settlement~~Settlement (provided that, with respect to any Conversion Date following the Regular Record Date immediately preceding the Maturity Date where Physical Settlement applies to the related conversion, the Company shall settle any such conversion on the Maturity Date), or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to a converting ~~Holders~~Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be entitled, in ~~certificate form or in~~ book-entry ~~format~~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 (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 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 ~~11.04~~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 1114. (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~~, and the Company shall not adjust the Conversion Rate to adjust for any accrued and unpaid interest on 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 ~~excluding~~not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (34) to the extent of any Defaulted Amounts, if any Defaulted Amounts ~~exist~~ exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the shares of Common ~~Shares~~ Stock shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common ~~Shares~~ Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of ~~Common Shares~~ shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional ~~Common Shares~~ 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 11.02~~‎Section 14.02, ~~Section 11.03(b~~‎Section 14.03(b) and ~~Section 11.07(a~~‎Section 14.07(a), upon conversion of any Note, the Company shall ~~pay~~ satisfy its Conversion Obligation by paying or ~~deliver~~delivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j‎(j) of this ~~Section 11.02~~ ‎Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j‎(j) of this ~~Section 11.02~~ ‎Section 14.02 (“Combination Settlement”), at its election, as set forth in this ~~Section 11.02~~‎Section 14.02. (i) All conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Notice of Redemption with respect to the Notes and prior to the related Redemption Date shall be settled using the same Settlement Method, and all conversions for which the relevant Conversion Date occurs on or after ~~September 1~~December 15, ~~2025~~ 2026, shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Notice of Redemption with respect to the Notes but prior to the related Redemption Date, and any conversions for which the relevant Conversion Date occurs on or after ~~September 1~~December 15, ~~2025~~2026, 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 conversions for which the ~~period~~ relevant Conversion Date occurs after the Company’s issuance of a Notice of Redemption with respect to the Notes and prior to the related Redemption Date, or for which the relevant Conversion Date occurs on or after December 15, 2026 or for which the Company has irrevocably elected Physical Settlement pursuant to ‎‎Section 14.01(b)(ii) in a notice as described in ~~the third immediately succeeding set of parentheses, as the case may be~~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, 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 (A) for which the relevant Conversion Date occurs (x) after the date of issuance of a Notice of Redemption with respect to the Notes and prior to the related Redemption Date, in such Notice of Redemption or (y) on or after ~~September 1~~December 15, ~~2025~~2026, no later than ~~September 1~~December 15, ~~2025~~2026 or (B) 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 prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to any conversion on such Conversion Date or during such period, and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. 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 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)~~all Holders, the Company may, prior to ~~September 1~~December 15, ~~2025~~2026, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through a 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 through the Trustee 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 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. Such irrevocable election shall apply for all conversions of Notes with Conversion Dates occurring subsequent to delivery of such notice~~. Not later than three Business Days after providing notice~~ ; provided, however, that no such election will affect any Settlement Method theretofore elected (or deemed to ~~Holders, the Trustee and the Conversion Agent (if other than the Trustee~~be elected) ~~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 electionany Note. For the avoidance of doubt, such an irrevocable election, if ~~made~~made by the Company, will be effective without the need to amend this ~~Second Supplemental~~ Indenture or the Notes, including pursuant to ~~Section 9.02(i~~‎‎‎Section 10.01(m). However, the Company ~~may, nonetheless,~~ may nonetheless choose to execute such an amendment at its option. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 30 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 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~~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 the amount of cash payable in lieu of delivering fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to ~~Section 11.02(e~~‎Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in ~~Section 11.02(h~~‎Section 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~~ 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 11.02(h~~‎Section 14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this ~~Article 11~~ ‎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 12.03~~‎Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered~~, 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(b) above. Except as set forth in ~~Section 11.03(b~~‎‎Section 14.03(b) and ~~Section 11.07(a~~‎Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical ~~Settlement~~Settlement (provided that, with respect to any Conversion Date following the Regular Record Date immediately preceding the Maturity Date where Physical Settlement applies to the related conversion, the Company shall settle any such conversion on the Maturity Date), or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to a converting ~~Holders~~Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be entitled, in ~~certificate form or in~~ book-entry ~~format~~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 (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 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 11.04~~‎Section 14.04, no adjustment shall be made for dividends on any shares of Common ~~Shares~~ Stock issued upon the conversion of any Note as provided in this Article 1114. (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~~, and the Company shall not adjust the Conversion Rate to adjust for any accrued and unpaid interest on 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 ~~excluding~~not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (34) to the extent of any Defaulted Amounts, if any Defaulted Amounts ~~exist~~ exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the shares of Common ~~Shares~~ Stock shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects (or is deemed to have elected) to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional Common Shares upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Common Shares issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of Common Shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional Common Shares remaining after such computation shall be paid in cash.relat

Appears in 1 contract

Sources: Indenture (Splunk Inc)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~14.02, Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), upon conversion of any Note, 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, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~14.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~September~~ July 1, ~~2025~~ 2023, and all conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date, shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption 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 ~~September~~ July 1, ~~2025~~2023, 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 one of the ~~period~~ periods described in the third immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the Trustee, shall deliver such Settlement Notice to converting ~~Holders~~ Holders, no later than the close of business on the ~~second~~ Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs (x) 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 or (y) on or after ~~September~~ July 1, ~~2025~~2023, no later than ~~September~~ the close of business on the Business Day immediately preceding July 1, ~~2025~~2023). If the Company does not elect a Settlement Method for a particular Conversion Date or Conversion Dates prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to such Conversion Date or Conversion Dates and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. 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 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 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 need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its option. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 40 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, 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 50 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~~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 the amount of cash payable in lieu of delivering fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~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 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 ~~11.02(h~~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 thereof) (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 ~~11.02(h~~14.02(h). The ~~Trustee (and if different, the~~ Conversion ~~Agent)~~ Agent shall notify the Company of any conversion pursuant to this Article 11 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered 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 ~~12.03~~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~~, 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 ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the second Business Day immediately following the last Trading Day of the relevant Observation Period, in the case of any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver ~~(if applicable)~~ to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be ~~entitled, in certificate form or in book-entry format,~~ entitled 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~~ Trustee, upon Company Order, 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 Trustee or ~~Trustee~~the Note Registrar, 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~~conversion and any reasonable expense (including reasonable attorneys’ fees), 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 ~~11.04~~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 1114. (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~~, and the Company shall not adjust the Conversion Rate to adjust for any accrued and unpaid interest on 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 ~~excluding~~not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (34) to the extent of any ~~Defaulted Amounts~~overdue interest, if any ~~Defaulted Amounts~~ overdue interest 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 or any Fundamental Change Repurchase Date or Redemption Date as described in the immediately preceding sentence shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the shares of Common ~~Shares~~ Stock shall be ~~issuable~~ issued upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common ~~Shares~~ Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of ~~Common Shares~~ shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional ~~Common Shares~~ shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Sources: Indenture (Pandora Media, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~14.02, Section ~~11.03(b~~14.03(b), Section 14.07(a) and Section ~~11.07(a)~~14.12, upon conversion of any Note, 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, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~14.02. Notwithstanding the foregoing, to the extent the Board of Directors determines in good faith that the issuance of any shares of Common Stock upon any conversion of the Notes or in respect of any Make-Whole Premium could cause the Company to undergo an “ownership change” as defined in Section 382 of the Internal Revenue Code of 1986, as amended, and the Treasury Regulations promulgated thereunder or otherwise could materially and adversely affect the Company’s ability to preserve its ability to utilize its net operating loss carryforwards for U.S. federal income tax purposes, the Company shall be required to elect to settle such conversion through Cash Settlement or Combination Settlement and to settle such Make-Whole Premium in cash or in a combination of cash and shares of Common Stock, in each case, to the extent of such determination. (i) All conversions for which the relevant Conversion Date occurs on or after ~~September 1~~March 15, ~~2025~~ 2021, and all conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date, shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes but prior to the related Redemption Date, any conversions for which the relevant Conversion Date occurs on or after ~~September 1~~March 15, ~~2025~~2021, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion Date (or one of the ~~period~~ periods described in the third immediately succeeding set of parentheses, as the case may be), the Company elects ~~to deliver~~ a ~~notice (the “Settlement Notice”) of the relevant~~ Settlement Method in respect of such Conversion Date (or such period, as the case may be), the ~~Company, through the Trustee,~~ Company shall deliver ~~such~~ or cause delivery of a notice (the “Settlement ~~Notice~~ Notice”) of the relevant Settlement Method to converting Holders and the Conversion Agent (and the Trustee if not the Conversion Agent) no later than the close of business on the ~~second~~ Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs (x) 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 or (y) on or after ~~September 1~~March 15, ~~2025~~2021, no later than ~~September 1~~March 15, ~~2025~~2021). 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 deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. 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 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 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~~ this clause (iii) and the ~~need~~ provisions hereof are subject to ~~amend this Second Supplemental Indenture or~~ the ~~Notes, including pursuant to~~ provisions of Section ~~9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its option~~14.12. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed by the Company as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 30 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 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~~Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) in writing of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~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 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 11.02(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 thereof) (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 11.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered 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 12.03. 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 11.03(b) and Section 11.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any Common Shares are due to converting Holders, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of Common Shares to which such Holder shall be entitled, in certificate form or in book-entry format, 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 11.04, no adjustment shall be made for dividends on any Common Shares issued upon the conversion of any Note as provided in this Article 11. (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, and the Company shall not adjust the Conversion Rate to adjust for any accrued and unpaid interest on 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 excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and 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 such Interest Payment Date, on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a 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 (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts exist at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the Common Shares shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects (or is deemed to have elected) to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional Common Shares upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Common Shares issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of Common Shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional Common Shares remaining after such computation shall be paid in cash.in

Appears in 1 contract

Sources: Indenture (Par Pacific Holdings, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~14.02, Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting ~~Holder~~Holder a settlement amount, in respect of each $1,000 principal amount of Notes being converted, consisting of, at the Company’s election, solely cash (“Cash Settlement”), solely shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~14.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~September~~ May 1, ~~2025~~ 2020 shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs on or after ~~September~~ May 1, ~~2025~~2020, 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 the period described in the third immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the ~~Company, through~~ Company shall instruct the ~~Trustee, shall~~ Trustee to 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 for which the relevant Conversion Date occurs on or after ~~September~~ May 1, ~~2025~~2020, no later than ~~September~~ May 1, ~~2025~~2020). If the Company does not elect a Settlement Method with respect to a specific Conversion Date prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to that Conversion Date and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 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 in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. ~~By notice~~ In addition, and notwithstanding any Settlement Method election to ~~Holders of~~ the ~~Notes, the Trustee and the Conversion Agent (if other than the Trustee)~~contrary, the Company ~~may, prior~~ shall be deemed to ~~September 1, 2025, at its option, irrevocably elect to satisfy~~ have elected Combination Settlement in respect of its Conversion ~~Obligation with respect to~~ Obligation, and the ~~Notes through a Combination Settlement with a~~ Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to equal $1,000, in respect of ~~$1,000~~ any conversions for ~~all~~ which the Conversion ~~Dates occurring subsequent~~ Date occurs prior to ~~delivery~~ the date the Company receives shareholder approval to increase the number of ~~such notice~~its authorized but unissued shares of Common Stock that are not reserved for other purposes by 5,181,951 shares or more. ~~Not later than three Business Days after providing notice to Holders~~The Company shall promptly notify the Trustee, ~~the Trustee and~~ the Conversion Agent ~~(if other than~~ and the ~~Trustee)~~ Holders 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 Notes following receipt of such irrevocable election. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its optionshareholder approval. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date, together with cash in lieu of any fractional shares, if any; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 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, the Company shall pay or deliver, as the case may be, 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 50 60 consecutive Trading Days during the related Observation Period, together with cash in lieu of fractional shares, if any. (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~~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 the amount of cash payable in lieu of delivering fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~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 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 ~~11.02(h~~14.02(h) and, if required, pay all taxes and duties, 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 thereof) (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~~ H▇▇▇▇▇ is not entitled as set forth in Section ~~11.02(h~~14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes, except to the extent that a portion of such Holder’s Notes is not subject to such Fundamental Change Repurchase Notice, and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~12.03~~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~~, 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 11.03(b~~‎Section 14.03(b)Section 14.07(a) and Section ~~11.07(a~~14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the ~~second~~ third Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the ~~second~~ third Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be entitled, in certificate form or in book-entry format, 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 shares of Common ~~Shares~~ Stock upon ~~conversion~~conversion and any reasonable expense (including reasonable attorneys fees) of the Trustee, the Conversion Agent, or the Custodian due in connection therewith, 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 ~~11.04~~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 1114. (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~~, and the Company shall not adjust the Conversion Rate to adjust for any accrued and unpaid interest on 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 ~~excluding~~not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, on the Note to, but ~~excluding~~not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of ~~the~~ any 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 such Interest Payment Date,~~ payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a 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 (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts ~~exist~~ exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the shares of Common ~~Shares~~ Stock shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on (1) the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or (2) the last Trading Day of the relevant Observation Period (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common ~~Shares~~ Stock issuable upon conversion based on (1) the Daily VWAP for the relevant Conversion Date, or if such Conversion Date is not a Trading Day, the immediately preceding Trading Day (in the case of Physical Settlement) or (2) based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of ~~Common Shares~~ shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional ~~Common Shares~~ shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Sources: Indenture (Aceto Corp)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~14.02, Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), upon conversion of any Note, the Company shall ~~pay~~ satisfy its Conversion Obligation by paying or ~~deliver~~delivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with ~~subsection (j~~Section 14.02(j) ~~of this Section 11.02~~ (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with ~~subsection (j~~Section 14.02(j) ~~of this Section 11.02~~ (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~14.02. (i) All conversions of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period, and all conversions for which the relevant Conversion Date occurs on or after ~~September 1~~March 15, ~~2025~~ 2032, shall be settled using the same Settlement Method. (ii) Except for any conversions of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period, and any conversions for which the relevant Conversion Date occurs on or after ~~September 1~~August 15, ~~2025~~2032, and except to the extent the Company 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 conversions of Called Notes for which the ~~period described in~~ relevant Conversion Date occurs during the ~~third immediately succeeding set of parentheses~~related Redemption Period, as or any conversions for which the ~~case may be~~relevant Conversion Date occurs on or after August 15, 2032), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the ~~Company, through the Trustee,~~ 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 ~~second~~ Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions (A) of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period, in the related Notice of Redemption or (B) of Notes for which the relevant Conversion Date occurs on or after ~~September 1~~August 15, ~~2025~~2032, no later than ~~September 1~~August 15, ~~2025~~2032, 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 prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect ~~Cash~~ a Settlement Method with respect to any conversion on such Conversion Date or ~~Physical Settlement~~ during such period, and the Company shall be deemed to have elected ~~Combination~~ the Default Settlement in Method with respect ~~of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal~~ to ~~$1,000~~such conversion. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount 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 timely elect a Settlement Method or specify as applicable a Specified Dollar Amount shall not constitute a Default or Event of Default under this Indenture. By notice to ~~Holders of the Notes~~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 ~~September 1~~March 15, ~~2025~~2032. By notice to all Holders, the Company may, prior to March 15, 2032, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through a 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 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 $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. ~~Not later than three Business Days after~~ 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 ~~an irrevocable election with respect to the Settlement Method as described in the immediately preceding sentence~~such change or election, the Company shall ~~issue~~ either post the Default Settlement Method or fixed Settlement Method, as the case may be, on its website or disclose the same in a ~~Current Report~~ current report on Form 8-K (or ~~press release or otherwise provide public disclosure in a manner compliant~~ any successor form) that is filed 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 need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its optionCommission. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 40 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 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~~Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or (if applicable), the Daily Conversion ~~Values, as the case may be,~~ Values (if applicable) and the amount of cash payable in lieu of delivering any fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~11.02(h~~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~~ facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable 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 ~~11.02(h~~14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 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 ~~12.03~~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~~, 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~~Section 14.02(b). Except as set forth in Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical ~~Settlement~~Settlement (provided that, with respect to any Conversion Date following June 1, 2032 where Physical Settlement applies to the related conversion, the Company shall settle any such conversion on the Maturity Date), or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to a converting ~~Holders~~Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to ~~the Conversion Agent or to~~ such Holder, or such Holder’s nominee or nominees, the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be entitled, in ~~certificate form or in~~ book-entry ~~format~~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 (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 shares of Common ~~Shares~~ Stock upon conversion, ~~unless~~ except to the extent such 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 ~~11.04~~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 1114. (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,~~ interest except as set forth below~~, and the Company shall not adjust the Conversion Rate to adjust for any accrued and unpaid interest on 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,~~ interest to, but ~~excluding~~not including, the relevant Conversion Date. As a result, accrued and unpaid ~~interest, if any,~~ interest to, but ~~excluding~~not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date for the payment of interest, 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 any interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) for conversions of Called Notes during a Redemption Period if the Company has specified a ~~Fundamental Change Repurchase~~ Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts exist at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the Common Shares shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects (or is deemed to have elected) to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional Common Shares upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Common Shares issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of Common Shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional Common Shares remaining after such computation shall be paid in cash.D

Appears in 1 contract

Sources: Indenture (Aeva Technologies, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~14.02, Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), upon conversion of any Note, 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, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~14.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~September 1~~August 15, ~~2025~~ 2028, 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 the second Scheduled Trading Day immediately preceding the related Redemption Date, shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Notice of Redemption with respect to 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 ~~September 1~~August 15, ~~2025~~2028, 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 the period described in the third immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the 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 for which the relevant Conversion Date occurs (x) after the date of issuance of a Notice of Redemption with respect to the Notes and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date, in such Notice of Redemption or (y) on or after ~~September 1~~August 15, ~~2025~~2028, no later than ~~September 1~~August 15, ~~2025~~2028) (in each case, the “Settlement Method Election Deadline”). If the Company does not elect a Settlement Method in respect of any conversion on such Conversion Date (or during such period, as the case may be) prior to the ~~deadline set forth in the immediately preceding sentence~~relevant Settlement Method Election Deadline, the Company shall no longer have the right to elect ~~Cash~~ a Settlement ~~or Physical Settlement~~ Method and the Company shall be deemed to have elected ~~Combination~~ the Default Settlement in Method with respect ~~of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal~~ to ~~$1,000~~such conversion. ~~Such~~ Any Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company ~~delivers a Settlement Notice electing~~ timely elects Combination Settlement in with respect ~~of its Conversion Obligation~~ to a conversion but does not ~~indicate a~~ timely notify the converting Holder through the Trustee of the applicable Specified Dollar Amount, then the Specified Dollar Amount for such conversion shall be deemed to be $1,000 per $1,000 principal amount of ~~Notes in such Settlement Notice~~Notes. For the avoidance of doubt, the Company’s failure to timely elect a Settlement Method or specify the applicable Specified Dollar Amount ~~per $1,000 principal amount of Notes~~ shall ~~be deemed to be $1,000~~not constitute a default under this Indenture. ~~By notice to Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee), the~~ The Company may, by notice to the Holders through the Trustee prior to ~~September 1~~August 15, ~~2025, at its option~~2028, irrevocably ~~elect~~ fix the Settlement Method to ~~satisfy its Conversion Obligation with respect~~ any Settlement Method that the Company is then permitted to ~~the Notes through a~~ elect, including Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 ~~for~~ 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 ~~Dates occurring subsequent to delivery of~~ Date that is on or after the date the Company sends such notice. ~~Not~~ 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 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 ~~three Business Days after~~ 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 ~~Holders,~~ all Holders through the Trustee ~~and~~ of such change in the ~~Conversion Agent (if other than the Trustee) of an irrevocable~~ Default Settlement Method or election ~~with respect~~ to irrevocably fix the Settlement ~~Method as described in the immediately preceding sentence~~Method, the Company shall ~~issue~~ promptly file a ~~Current Report~~ report on Form 8-K or issue a press release ~~or otherwise provide public disclosure in a manner compliant with Regulation FD~~ 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~~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~~election of the Settlement Method, if made, ~~will~~ shall be effective without the need to amend this ~~Second Supplemental~~ Indenture or the Notes, including pursuant to the provisions described in Section ~~9.02(i~~10.01(l). However, the Company ~~may, nonetheless,~~ may nonetheless choose to execute such an amendment at ~~its~~ 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: (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 number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 25 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, 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 50 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~~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 the amount of cash payable in lieu of delivering fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~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 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 ~~11.02(h~~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 thereof) (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 ~~11.02(h~~14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered 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 ~~12.03~~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~~, 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 ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be entitled, in ~~certificate~~ certificated form or in book-entry format, 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 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 ~~11.04~~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 1114. (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~~, and the Company shall not adjust the Conversion Rate to adjust for any accrued and unpaid interest on 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 ~~excluding~~not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so converted; provided that no such payment shall be required (1) for conversions ~~following~~ after the close of business on the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a 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) 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 second Scheduled Trading Day immediately following the corresponding Interest Payment Date; or (34) to the extent of any Defaulted Amounts, if any Defaulted Amounts ~~exist~~ exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all applicable Holders of record at the close of business on the Regular Record Date immediately preceding the Maturity Date or any Redemption Date shall receive the full interest payment due on the Maturity Date or any Redemption Date, as the case may be, regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the Common Shares shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects (or is deemed to have elected) to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional Common Shares upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Common Shares issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of Common Shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional Common Shares remaining after such computation shall be paid in cash.T

Appears in 1 contract

Sources: Indenture (Wayfair Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this ~~Section 11.02~~‎Section 14.02, ~~Section 11.03(b~~‎Section 14.03(b) and ~~Section 11.07(a~~‎Section 14.07(a), upon conversion of any Note, the Company shall ~~pay~~ satisfy its Conversion Obligation by paying or ~~deliver~~delivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j‎(j) of this ~~Section 11.02~~ ‎Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j‎(j) of this ~~Section 11.02~~ ‎Section 14.02 (“Combination Settlement”), at its election, as set forth in this ~~Section 11.02~~‎Section 14.02. (i) All conversions of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period, and all conversions for which the relevant Conversion Date occurs on or after ~~September 1~~May 15, ~~2025~~ 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 the related Redemption Period, and any conversions for which the relevant Conversion Date occurs on or after ~~September 1~~May 15, 2025, 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 conversions of Called Notes for which the ~~period~~ relevant Conversion Date occurs during the related Redemption Period, or for which the relevant Conversion Date occurs on or after May 15, 2025 or for which the Company has irrevocably elected Physical Settlement pursuant to ‎‎Section 14.01(b)(ii) in a notice as described in ~~the third immediately succeeding set of parentheses, as the case may be~~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, 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 ~~second~~ Trading Day immediately following the relevant Conversion Date (or, in the case of (A) any conversions of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period, in the related Notice of Redemption, (B) any conversions of Notes for which the relevant Conversion Date occurs on or after ~~September 1~~May 15, 2025, no later than ~~September 1~~May 15, ~~2025~~2025 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). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect ~~Cash~~ a Settlement Method with respect to any conversion on such Conversion Date or ~~Physical Settlement~~ during such period, and the Company shall be deemed to have elected ~~Combination~~ the Default Settlement in Method with respect ~~of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal~~ to ~~$1,000~~such conversion. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount 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 timely elect a Settlement Method or specify as applicable a Specified Dollar Amount shall not constitute a Default under this Indenture. By notice to ~~Holders of the Notes~~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 ~~September 1~~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 a 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 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 $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~~. Not later than three Business Days after providing notice~~ ; provided, however, that no such election will affect any Settlement Method theretofore elected (or deemed to ~~Holders, the Trustee and the Conversion Agent (if other than the Trustee~~be elected) ~~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 electionany Note. For the avoidance of doubt, such an irrevocable election, if ~~made~~made by the Company, will be effective without the need to amend this ~~Second Supplemental~~ Indenture or the Notes, including pursuant to ~~Section 9.02(i~~‎‎‎Section 10.01(m). However, the Company ~~may, nonetheless,~~ 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 either post the Default Settlement Method 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 successor form) that is filed with the Commission. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (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 number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 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, 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 50 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~~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 the amount of cash payable in lieu of delivering fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to ~~Section 11.02(e~~‎Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in ~~Section 11.02(h~~‎Section 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~~ 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 11.02(h~~‎Section 14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this ~~Article 11~~ ‎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 12.03~~‎Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered~~, 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(b) above. Except as set forth in ~~Section 11.03(b~~‎‎Section 14.03(b) and ~~Section 11.07(a~~‎Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical ~~Settlement~~Settlement (provided that, with respect to any Conversion Date following the Regular Record Date immediately preceding the Maturity Date where Physical Settlement applies to the related conversion, the Company shall settle any such conversion on the Maturity Date), or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to a converting ~~Holders~~Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be entitled, in ~~certificate form or in~~ book-entry ~~format~~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 (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 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 11.04~~‎Section 14.04, no adjustment shall be made for dividends on any shares of Common ~~Shares~~ Stock issued upon the conversion of any Note as provided in this Article 1114. (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~~, and the Company shall not adjust the Conversion Rate to adjust for any accrued and unpaid interest on 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 ~~excluding~~not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a ~~Fundamental Change Repurchase~~ Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts exist at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the Common Shares shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects (or is deemed to have elected) to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional Common Shares upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Common Shares issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has ~~elected Combination Settlement, the full number of Common Shares~~ specified a Fundamental Change Repurchase Date that ~~shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional Common Shares remaining~~ is after ~~such computation shall be paid in cash.~~a Regular Record Dat

Appears in 1 contract

Sources: Indenture (OMNICELL, Inc)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~14.02, Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), upon conversion of any Note, the Company shall ~~pay~~ satisfy its Conversion Obligation by paying or ~~deliver~~delivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~14.02. (i) All conversions of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period, and all conversions for which the relevant Conversion Date occurs on or after ~~September~~ January 1, ~~2025~~ 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 the related Redemption Period, and any conversions for which the relevant Conversion Date occurs on or after ~~September~~ January 1, ~~2025~~2030, 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 conversions of Called Notes for which the ~~period~~ relevant Conversion Date occurs during the related Redemption Period, or any conversions for which the relevant Conversion Date occurs on or after January 1, 2030 or for which the Company has irrevocably elected Physical Settlement pursuant to Section 14.01(b)(ii) in a notice as described in ~~the third immediately succeeding set of parentheses, as the case may be~~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, through the Trustee,~~ 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 ~~second~~ Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions (A) of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period, in the related Notice of Redemption, (B) of Notes for which the relevant Conversion Date occurs on or after ~~September~~ January 1, ~~2025~~2030, no later than ~~September~~ January 1, ~~2025~~2030 or (C) 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 prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect ~~Cash~~ a Settlement Method with respect to any conversion on such Conversion Date or ~~Physical Settlement~~ during such period, and the Company shall be deemed to have elected ~~Combination~~ the Default Settlement in Method with respect ~~of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal~~ to ~~$1,000~~such conversion. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount 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 timely elect a Settlement Method or specify as applicable a Specified Dollar Amount shall not constitute a Default or Event of Default under this Indenture. By notice to ~~Holders of the Notes~~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 ~~September~~ January 1, ~~2025~~2030. By notice to all Holders, the Company may, prior to January 1, 2030, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through a 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 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 $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. ~~Not later than three Business Days after~~ 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 ~~an irrevocable election with respect to the Settlement Method as described in the immediately preceding sentence~~such change or election, the Company shall ~~issue~~ either post the Default Settlement Method or fixed Settlement Method, as the case may be, on its website or disclose the same in a ~~Current Report~~ current report on Form 8-K (or ~~press release or otherwise provide public disclosure in a manner compliant~~ any successor form) that is filed 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 need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its optionCommission. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 20 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 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~~Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or (if applicable), the Daily Conversion ~~Values, as the case may be,~~ Values (if applicable) and the amount of cash payable in lieu of delivering any fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to ~~interest~~ any Special Interest payable on the next Special Interest Payment Date to which such Holder is not entitled as set forth in Section ~~11.02(h~~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~~ 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 ~~11.02(h~~14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 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 or a Specified Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice or Specified Repurchase Notice, as applicable, in accordance with Section ~~12.03~~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~~, 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 ~~11.03(b~~14.03(b) and Section 11.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any Common Shares are due to converting Holders, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of Common Shares to which such Holder shall be entitled, in certificate form or in book-entry format, 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 11.04, no adjustment shall be made for dividends on any Common Shares issued upon the conversion of any Note as provided in this Article 11. (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, and the Company shall not adjust the Conversion Rate to adjust for any accrued and unpaid interest on 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 excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and 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 such Interest Payment Date, on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a 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 (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts exist at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the Common Shares shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects (or is deemed to have elected) to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional Common Shares upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Common Shares issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of Common Shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional Common Shares remaining after such computation shall be paid in cash.and

Appears in 1 contract

Sources: Indenture (GameStop Corp.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to the other provisions of this Section ~~11.02,~~ 12.02 and to Section ~~11.03(b~~12.03(b) and Section ~~11.07(a~~12.07(a), upon conversion of any Note, 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, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of ~~delivering~~ any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 12.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of ~~delivering~~ any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 12.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~12.02. In addition, in respect of conversions pursuant to Section 12.01(b)(iii), the Company shall pay to the converting Holder accrued and unpaid interest to, but not including, the Conversion Date (unless the Conversion Date falls after a Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record Date relates, in which case the Company shall instead pay the full amount of accrued and unpaid interest to the Holder of record on such Regular Record Date and the Conversion Obligation shall not include accrued and unpaid interest to, but not including, the Conversion Date). (i) All conversions ~~for which the relevant Conversion Date occurs~~ occurring on or after ~~September~~ November 1, ~~2025~~ 2017 and all conversions occurring after the Company’s issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date shall be settled using the same Settlement Method. (ii) ~~Except~~ Prior to November 1, 2017, except for any conversions ~~for which~~ that occur after the ~~relevant Conversion Date occurs on or after September 1, 2025~~Company’s issuance of a Redemption Notice with respect to the Notes but prior to the related Redemption Date, the Company shall use the same Settlement Method for all conversions ~~with~~ occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions ~~with~~ that occur on different ~~Conversion Dates~~Trading Days. (iii) If, in respect of any Conversion Date (or the period ~~described in~~ beginning on, and including, November 1, 2017 and ending on, and including, the ~~third~~ second Scheduled Trading Day immediately ~~succeeding set of parentheses~~preceding the Maturity Date, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the 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 ~~for which~~ occurring (x) after the ~~relevant Conversion Date occurs~~ date of issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date, in such Redemption Notice or (y) on or after ~~September~~ November 1, ~~2025~~2017, no later than ~~September~~ November 1, ~~2025~~2017). Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount. If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. 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 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~~ 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 need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its option. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate (and cash in ~~effect on the Conversion Date~~lieu of any fractional share of Common Stock); (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 20 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, 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 50 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 ~~Common Share~~share, 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 the amount of cash payable in lieu of ~~delivering~~ fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent ~~(if other than the Trustee)~~ shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~12.02(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 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 ~~11.02(h~~12.02(h) and (ii) in the case of a Physical Note (1) ~~complete,~~ complete and manually sign ~~and deliver an~~ the irrevocable notice ~~to the Conversion Agent as~~ set forth in on the ~~Form~~ back of ~~Notice of Conversion (or a facsimile thereof)~~ the Note (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~~a facsimile thereof), (2) ~~surrender such Notes, duly endorsed~~ deliver the Notice of Conversion and the Note to the ~~Company or in blank (and accompanied by appropriate endorsement and transfer documents),~~ Conversion Agent 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 ~~11.02(h~~12.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 12 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered 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 ~~12.03~~13.02. The conversion of a beneficial interest in a Global Note shall be effected through the Depositary (but not the Trustee or the Custodian) in accordance with this Indenture and the procedures of the Depositary therefor. Before the holder of a beneficial interest in a Global Note shall be entitled to convert, all or a portion of such holder’s beneficial interest, such holder shall (i) comply with the procedures of the Depositary and if required, pay funds equal to interest payable on the next Interest Payment Date as set forth in Section 12.02(h). 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 11.03(b) and Section 11.07(a), the~~ The Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion ~~Obligation~~ Obligation, including any accrued and unpaid interest in respect of conversions pursuant to Section 12.01(b)(iii) on the ~~second~~ third Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the ~~second~~ third Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver ~~(if applicable)~~ to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be ~~entitled, in certificate form or in book-entry format,~~ entitled 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 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 ~~11.04~~12.04, no adjustment shall be made for dividends on any ~~Common Shares~~ shares issued upon the conversion of any Note as provided in this Article 1113. (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,~~ below and ~~the Company shall~~ as set forth in Section 12.02(a). In any case in which a Holder does not ~~adjust the Conversion Rate to adjust~~ receive a separate cash payment for ~~any~~ accrued and unpaid interest on upon conversion of its Notes, 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 ~~excluding~~not including, the ~~relevant~~ Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~not including, the ~~relevant~~ Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the corresponding Interest Payment Date; (3) for conversions pursuant to Section 12.01(b)(iii); (4) 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 (35) to the extent of any ~~Defaulted Amounts~~overdue interest, if any ~~Defaulted Amounts exist~~ overdue interest exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the certificate for any shares of Common ~~Shares shall be issuable~~ Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of ~~delivering~~ any fractional share of Common ~~Shares~~ Stock issuable upon conversion based on the Daily VWAP ~~for~~ on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP ~~for~~ on the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of ~~Common Shares~~ shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the ~~relevant~~ applicable Observation Period and any fractional ~~Common Shares~~ shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Sources: Indenture (Savient Pharmaceuticals Inc)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~14.02, Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), upon conversion of any Note, the Company shall ~~pay~~ satisfy its Conversion Obligation by paying or ~~deliver~~delivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~14.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~September~~ March 1, ~~2025~~ 2024, and all conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Notice of Redemption with respect to the Notes and prior to the related Redemption Date, shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Notice of Redemption with respect to the Notes but prior to the related Redemption Date, and any conversions for which the relevant Conversion Date occurs on or after ~~September~~ March 1, ~~2025~~2024, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion Date (or any conversions for which the ~~period described in~~ relevant Conversion Date occurs after the ~~third immediately succeeding set~~ Company’s issuance of ~~parentheses~~a Notice of Redemption with respect to the Notes and prior to the related Redemption Date, as or for which the ~~case may be~~relevant Conversion Date occurs on or after March 1, 2024), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the 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 for which the relevant Conversion Date occurs (x) after the date of issuance of a Notice of Redemption with respect to the Notes and prior to the related Redemption Date, in such Notice of Redemption or (y) on or after ~~September~~ March 1, ~~2025~~2024, no later than ~~September~~ March 1, ~~2025~~2024). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to any conversion on such Conversion Date or during such period, and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. 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 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 need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its option. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows~~: (A)~~ : if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date~~; (B)~~ ; if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 25 consecutive Trading Days during the related Observation Period; ~~and (C)~~ and if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 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~~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 the amount of cash payable in lieu of delivering fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~11.02(h~~14.02(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, 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 ~~11.02(h~~14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 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 ~~12.03~~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~~, 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 ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to a converting ~~Holders~~Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be entitled, in ~~certificate form or in~~ book-entry ~~format~~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 (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 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 ~~11.04~~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 1114. (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, and the ~~Company~~ Conversion Rate shall not ~~adjust the Conversion Rate to adjust~~ be adjusted for any accrued and unpaid interest on ~~the~~ 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 ~~excluding~~not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (34) to the extent of any Defaulted Amounts, if any Defaulted Amounts ~~exist~~ 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 and any Fundamental Change Repurchase Date described in clauses (1)-(3) 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 the shares of Common ~~Shares~~ Stock shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common ~~Shares~~ Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of ~~Common Shares~~ shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional ~~Common Shares~~ shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Sources: Indenture (Invitae Corp)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~13.02, Section ~~11.03(b~~13.03(b) and Section ~~11.07(a~~13.07(a), upon conversion of any Note, 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, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 13.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 13.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~13.02. ~~(i)~~ i. All conversions for which the relevant Conversion Date occurs on or after ~~September 1~~the Company’s issuance of a Redemption Notice with respect to the Notes and on or prior to the second Business Day immediately preceding the related Redemption Date, ~~2025~~ and all conversions for which the relevant Conversion Date occurs on or after November 15, 2024, shall be settled using the same Settlement Method. (ii) . Except for any conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes but prior to the second Business Day immediately preceding the related Redemption Date, and any conversions for which the relevant Conversion Date occurs on or after ~~September 1~~November 15, ~~2025~~2024, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) . If, in respect of any Conversion Date (or the period described in the third immediately succeeding set of parentheses, 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~~Company shall inform #92449509v11 the Trustee and, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the close of business on the ~~second~~ first VWAP Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs (x) on or after ~~September 1~~the date of issuance of a Redemption Notice with respect to the Notes and on or before the second Business Day immediately preceding the related Redemption Date, ~~2025~~in such Redemption Notice or (y) on or after November 15, 2024, no later than ~~September 1~~November 15, ~~2025~~2024). If With respect to any conversion, if the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, ~~the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and~~ then the Company shall be deemed to have elected ~~Combination Settlement in respect of its Conversion Obligation, and~~ the ~~Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant~~ Default Settlement Method ~~and in~~ with respect to such conversion. If the ~~case of an election of~~ Company chooses Combination Settlement, it will specify the ~~relevant Settlement Notice shall indicate the~~ applicable Specified Dollar ~~Amount per $1,000 principal amount of Notes~~Amount. If However, 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 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~~the Company’s failure to timely elect a Settlement Method or specify the applicable Specified Dollar Amount will not constitute a Default under this Indenture. Notwithstanding anything to the contrary herein, if ~~made, will be effective without~~ the ~~need to amend this Second Supplemental Indenture or the Notes, including~~ Company calls any Notes for redemption pursuant to ~~Section 9.02(i). However~~Article 15 and the related Redemption Date is on or after November 15, 2024, then the Settlement Method that shall apply to all conversions with a Conversion Date that occurs on or after the date the Company ~~may~~sends the related Redemption Notice and on or before the second Business Day immediately preceding the 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 November 15, ~~nonetheless, choose to execute such an amendment at its option~~2024. (iv) . The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if ~~the Company elects to satisfy its Conversion Obligation in respect of such conversion by~~ Physical ~~Settlement~~Settlement applies, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion ~~Date~~Date (provided that the Company shall deliver cash in lieu of fractional shares as described in Section 13.02(j)); (B) if ~~the Company elects to satisfy its Conversion Obligation in respect of such conversion by~~ Cash ~~Settlement~~Settlement applies, 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 50 40 consecutive VWAP Trading Days during the related ~~Observation~~ Conversion Reference 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~~Settlement applies, the Company shall pay or deliver, as the case may be, 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 50 40 consecutive VWAP Trading Days during the related ~~Observation~~ Conversion Reference Period.. #92449509v11 ~~(v)~~ v. The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the ~~Observation~~ 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~~Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) in writing of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~13.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the 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 11.02(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 thereof) (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 ~~11.02(h~~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 11 13 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered 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 ~~12.03~~14.02. A Holder of a Note may obtain copies of the required Form of Notice of Conversion from the Conversion Agent. 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 11.03(b~~‎Section 13.03(b) and Section ~~11.07(a~~13.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the second Business Day immediately following the last VWAP Trading Day of the ~~Observation~~ Conversion Reference Period, in the case of any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver ~~(if applicable)~~ to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, a book-entry transfer of such shares of #92449509v11 Common Stock through the Depositary for the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be ~~entitled, in certificate form or in book-entry format,~~ entitled 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 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 ~~11.04~~13.04, no adjustment shall be made for dividends on any shares of Common ~~Shares~~ Stock issued upon the conversion of any Note as provided in this Article 1113. (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~~, and the Company shall not adjust the Conversion Rate to adjust for any accrued and unpaid interest on 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 ~~excluding~~not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted with a Conversion Date occurring after ~~the close of business on~~ a Regular Record Date but prior to the next Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will ~~receive~~ receive, on or, at the Company’s election, before such Interest Payment Date, 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 their surrender for such conversion, must be accompanied by funds equal to the amount of interest ~~payable,~~ payable on such Notes so converted on such Interest Payment Date~~, on the Notes so converted~~; provided that no such payment shall be required (1) ~~for conversions following~~ if such Conversion Date is after the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified #92449509v11 a Redemption Date that is after such Regular Record Date and on or prior to the second Business Day immediately following such Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a such Regular Record Date and on or prior to the Business Day immediately following ~~the corresponding~~ such Interest Payment Date; or (34) to the extent of any Defaulted Amounts, if any Defaulted Amounts exist at the time of conversion with respect to such ~~Note~~Notes. Therefore, for the avoidance of doubt, all Holders of record as of the close of business on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the shares of Common ~~Shares~~ Stock shall be issuable upon conversion shall ~~be treated as a~~ become the stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last VWAP Trading Day of the relevant ~~Observation~~ Conversion Reference Period (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common ~~Shares~~ Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last VWAP 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 Combination Settlement, the full number of ~~Common Shares~~ shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant ~~Observation~~ Conversion Reference Period and any fractional ~~Common Shares~~ shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Sources: Indenture (Live Nation Entertainment, Inc.)

Conversion Procedure; Settlement Upon Conversion. ~~(a) Subject to this Section 11.02, Section 11.03(b~~Except as provided in ‎Section 13.03(b) and ~~Section 11.07(a~~‎Section 13.07(a), upon conversion of any Note, 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,~~ cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j‎(j) of this ~~Section 11.02~~ ‎Section 13.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j‎(j) of this ~~Section 11.02~~ ‎Section 13.02 (“Combination Settlement”), at ~~its~~ the Company’s election, as ~~set forth in this Section 11.02~~the case may be, as described below. (i) All conversions ~~for which~~ occurring during the ~~relevant~~ Common Conversion ~~Date occurs on~~ Period, during the Maturity Conversion Period or ~~after September 1~~during a Redemption Period, ~~2025~~ as the case may be, shall be settled using the same Settlement Method~~. (ii)~~ . Except for any conversions ~~for which~~ occurring during the ~~relevant~~ Common Conversion ~~Date occurs on~~ Period, the Maturity Conversion Period or ~~after September 1, 2025~~a Redemption Period, 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~~ . If the ~~period described in the third immediately succeeding set of parentheses, as the case may be)~~Company elects a Settlement Method, the Company ~~elects to deliver a notice~~ shall notify in writing Holders converting through the Trustee of the Settlement Method it has selected (the “Settlement Notice”) ~~of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the 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~~ related Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs ~~on or after September 1~~(x) during a Redemption Period, ~~2025~~in the relevant Redemption Notice, (y) during the Common Conversion Period, no later than ~~September~~ March 1, ~~2025~~2027, or (z) during the Maturity Conversion Period, no later than March 1, 2042). If the Company does not so elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or ~~Physical~~ Combination Settlement and the Company shall be deemed to have elected ~~Combination~~ Physical Settlement in respect of to its Conversion Obligation. If the Company elects Combination Settlement, ~~and~~ 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. At any time on or prior to March 1, 2042, the Company may irrevocably elect to satisfy the Conversion Obligation with respect to any Notes to be converted after the date of such election through any Settlement Method the Company is permitted to elect (including Combination Settlement with a Specified Dollar Amount of $1,000 per $1,000 principal amount of Notes or with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes ~~shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and~~ at or above a specific amount set forth 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~~notice). If the Company ~~delivers a~~ irrevocably elects to fix the Settlement ~~Notice electing~~ Method to Combination Settlement ~~in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice,~~ with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes ~~shall be deemed to be $1,000. By notice to~~ at or above a specific amount, the Company shall, after the date of such election, inform the Holders ~~of the~~ converting their 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 of such Specified Dollar Amount no later than the relevant deadline for election of a Settlement Method, or, if the Company does not timely notify the Holders, 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 $1,000 per $1,000 principal amount of ~~Notes~~ Notes. 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 the provisions described above. The Company may make such an election at its sole discretion without the consent of ~~$1,000 for all Conversion Dates occurring subsequent to delivery of~~ the Holders. Upon making such ~~notice. Not later than three Business Days after providing~~ an election, the Company shall concurrently (A) post such information on its website or otherwise publicly disclose such information and (B) provide written notice to ~~Holders,~~ the Trustee and the Conversion Agent (if other than the Trustee) ~~of an irrevocable election with respect~~ and 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 electionHolders. For the avoidance of doubt, such an irrevocable election, if ~~made~~made by the Company, will be effective without the need to amend this ~~Second Supplemental~~ Indenture or the Notes, including pursuant to ~~Section 9.02(i~~‎Section 10.01(h). However, the Company ~~may, nonetheless,~~ may nonetheless choose to execute such an amendment at its option. (ivii) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if If the Company elects (or is deemed to ~~satisfy its Conversion Obligation in respect of such conversion by~~ have elected) Physical Settlement, the Company shall deliver to ~~the~~ converting ~~Holder~~ Holders in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion ~~Rate~~ Rate, together with cash, if applicable, in ~~effect on the Conversion Date~~lieu of delivering any fractional share of Common Stock in accordance with subsection ‎(j) of this ‎Section 13.02; (B) if If the Company elects ~~to satisfy its Conversion Obligation in respect of such conversion by~~ Cash Settlement, the Company shall pay to ~~the~~ converting ~~Holder~~ Holders 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 50 40 consecutive Trading Days ~~during~~ in the ~~related~~ relevant Observation Period; and (C) if If the Company elects ~~(or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by~~ Combination Settlement, the Company shall pay or deliver, as the case may be, to converting 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 50 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~~share, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) in writing of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of ~~delivering~~ fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section 11.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the 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 11.02(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 thereof) (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 11.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered 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 12.03. 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 11.03(b) and Section 11.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any Common Shares are due to converting Holders, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of Common Shares to which such Holder shall be entitled, in certificate form or in book-entry format, 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 11.04, no adjustment shall be made for dividends on any Common Shares issued upon the conversion of any Note as provided in this Article 11. (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, and the Company shall not adjust the Conversion Rate to adjust for any accrued and unpaid interest on 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 excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and 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 such Interest Payment Date, on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a 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 (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts exist at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the Common Shares shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects (or is deemed to have elected) to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional Common Shares upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Common Shares issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of Common Shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional Common 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 11.02~~‎Section 14.02, ~~Section 11.03(b)~~ ‎Section 14.03(b), and ~~Section 11.07(a~~‎Section 14.07(a), upon conversion of any Note, the Company shall ~~pay~~ satisfy its Conversion Obligation by paying or ~~deliver~~delivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j‎(j) of this ~~Section 11.02~~ ‎Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j‎(j) of this ~~Section 11.02~~ ‎Section 14.02 (“Combination Settlement”), at its election, as set forth in this ~~Section 11.02~~‎Section 14.02. (i) All conversions ~~for which the relevant Conversion Date occurs~~ occurring (x) on or after ~~September 1~~August 15, ~~2025~~ 2025, (y) during a Redemption Period or (z) during the period after delivery to the Holders of a Certain Distributions Notification until the related Certain Distributions Conversion Period End Date shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs (x) on or after ~~September 1~~August 15, 2025, (y) during a Redemption Period or (z) during the period after delivery to the Holders of a Certain Distributions Notification until the related Certain Distributions Conversion Period End Date, the Company shall use the same Settlement Method for all conversions ~~with~~ occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions ~~with~~ that occur on different Conversion Dates. (iii) (A) If, in respect of any Conversion Date (or one of the ~~period~~ periods described in the ~~third~~ fourth immediately succeeding set of parentheses, as 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, through~~ 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 ~~second~~ Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions ~~for which~~ occurring (x) during a Redemption Period, in such Redemption Notice, (y) during the ~~relevant~~ period after delivery to the Holders of a Certain Distributions Notification until the related Certain Distributions Conversion Period End Date ~~occurs~~ in such Certain Distributions Notification or (z) on or after ~~September 1~~August 15, 2025, no later than ~~September 1~~the close of business on the Business Day immediately preceding August 15, 2025) (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~~Settlement Method Election Deadline, ~~the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and~~ then the Company shall be deemed to have elected ~~Combination~~ the Default Settlement in Method with respect ~~of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal~~ to ~~$1,000~~such Conversion. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount 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 then the Specified Dollar Amount for such conversion will be deemed to be $1,000 per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. By notice to 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 need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such 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: (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 number of Common Shares equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, 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 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, 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 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 11.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the 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 11.02(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 thereof) (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 11.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered 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 12.03. 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 11.03(b) and Section 11.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any Common Shares are due to converting Holders, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of Common Shares to which such Holder shall be entitled, in certificate form or in book-entry format, in satisfaction of the Company’s ~~Conversion Obligation~~failure to timely elect a Settlement Method or specify the applicable Specified Dollar Amount will not constitute a default under this Indenture. (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 11.04, no adjustment shall be made for dividends on any Common Shares issued upon the conversion of any Note as provided in this Article 11. (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, and the Company shall not adjust the Conversion Rate to adjust for any accrued and unpaid interest on 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 excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and 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 such Interest Payment Date, on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a 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 (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts exist at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the Common Shares shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects (or is deemed to have elected) to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional Common Shares upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Common Shares issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of Common Shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional Common Shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Sources: Indenture (Esperion Therapeutics, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~14.02, Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), upon conversion of any Note, the Company shall ~~pay~~ satisfy its Conversion Obligation by paying or ~~deliver~~delivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with ~~subsection~~ subSection (j) of this Section ~~11.02~~ 14.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with ~~subsection~~ subSection (j) of this Section ~~11.02~~ 14.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~14.02. (i) All conversions of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period, and all conversions for which the relevant Conversion Date occurs on or after ~~September 1~~February 15, ~~2025~~ 2026, shall be settled using the same Settlement Method. (ii) Except for any conversions of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period, and any conversions for which the relevant Conversion Date occurs on or after ~~September 1~~February 15, ~~2025~~2026, 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 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 conversions of Called Notes for which the ~~period~~ relevant Conversion Date occurs during the related Redemption Period, or any conversions for which the relevant Conversion Date occurs on or after February 15, 2026 or for which the Company has irrevocably elected Physical Settlement pursuant to Section 14.01 (b)(ii) in a notice as described in ~~the third immediately succeeding set of parentheses, as the case may be~~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, through the Trustee,~~ 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 ~~second~~ Trading Day immediately following the relevant Conversion Date (or, in the case of (A) any conversions of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period, in the related Notice of Redemption, (B) any conversions of Notes for which the relevant Conversion Date occurs on or after ~~September 1~~February 15, ~~2025~~2026, no later than ~~September 1~~February 15, ~~2025~~2026 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). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect ~~Cash~~ a Settlement Method with respect to any conversion on such Conversion Date or ~~Physical Settlement~~ during such period, and the Company shall be deemed to have elected ~~Combination~~ the Default Settlement in Method with respect ~~of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal~~ to ~~$1,000~~such conversion. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount 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 timely elect a Settlement Method or specify as applicable a Specified Dollar Amount shall not constitute a Default under this Indenture. By notice to ~~Holders of the Notes~~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 ~~September 1~~February 15, ~~2025~~2026. By notice to all Holders, the Company may, prior to February 15, 2026, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through a 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 ~~for all Conversion Dates occurring subsequent~~ or with an ability to ~~delivery~~ 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 Election”). 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 $1,000 principal amount of Notes at or above a specific amount, the Company will, after the date of such ~~notice. Not later than three Business Days after providing notice to Holders~~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 ~~an irrevocable~~ such Specified Dollar Amount no later than the relevant deadline for election ~~with respect to the~~ of a specified Settlement Method as ~~described~~ set forth in the immediately preceding ~~sentence~~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 ~~issue a Current Report on Form 8-K~~ apply for all conversions of Notes with Conversion Dates occurring subsequent to delivery of such notice; provided, however, that no such change or ~~press release~~ election will affect any Settlement Method theretofore elected (or ~~otherwise provide public disclosure in a manner compliant~~ deemed to be elected) with ~~Regulation FD announcing that the Company has made such irrevocable election~~respect to any Note. For the avoidance of doubt, such an ~~irrevocable election~~Irrevocable Election, if ~~made~~made by the Company, will be effective without the need to amend this ~~Second Supplemental~~ Indenture or the Notes, including pursuant to Section ~~9.02(i~~10.01(m). However, the Company ~~may, nonetheless,~~ 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 either post the Default Settlement Method 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 successor form) that is filed with the Commission. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 40 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 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~~Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or (if applicable), the Daily Conversion ~~Values, as the case may be,~~ Values (if applicable) and the amount of cash payable in lieu of delivering any fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~11.02(h~~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~~ facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable 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 ~~11.02(h~~14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 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 ~~12.03~~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~~, 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 ~~11.03(b~~14.03(b) and Section ~~11.07(a~~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 68 relevant Conversion Date, if the Company elects Physical ~~Settlement~~Settlement (provided that, with respect to any Conversion Date following the Regular Record Date immediately preceding the Maturity Date where Physical Settlement applies to the related conversion, the Company shall settle any such conversion on the Maturity Date), or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to a converting ~~Holders~~Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be entitled, in ~~certificate form or in~~ book-entry ~~format~~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 (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 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 ~~11.04~~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 1114. (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~~, and the Company shall not adjust the Conversion Rate to adjust for any accrued and unpaid interest on 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 ~~excluding~~not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a 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 (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts exist at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the Common Shares shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects (or is deemed to have elected) to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional Common Shares upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Common Shares issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of Common Shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional Common Shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Sources: Indenture (Zynex Inc)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~14.02, Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), upon conversion of any Note, the Company shall ~~pay~~ satisfy its Conversion Obligation by paying or ~~deliver~~delivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~14.02. (i) All conversions of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period, and all conversions for which the relevant Conversion Date occurs on or after ~~September 1~~December 15, ~~2025~~ 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 the related Redemption Period, and any conversions for which the relevant Conversion Date occurs on or after ~~September 1~~December 15, 2025, 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 conversions of Called Notes for which the ~~period~~ relevant Conversion Date occurs during the related Redemption Period, or any conversions for which the relevant Conversion Date occurs on or after December 15, 2025 or for which the Company has irrevocably elected Physical Settlement pursuant to Section 14.01(b)(ii) in a notice as described in ~~the third immediately succeeding set of parentheses, as the case may be~~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, 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 ~~second~~ Trading Day immediately following the relevant Conversion Date (or, in the case of (A) any conversions of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period, in the related Notice of Redemption, (B) any conversions of Notes for which the relevant Conversion Date occurs on or after ~~September 1~~December 15, 2025, no later than ~~September 1~~December 15, ~~2025~~2025 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). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect ~~Cash~~ a Settlement Method with respect to any conversion on such Conversion Date or ~~Physical Settlement~~ during such period, and the Company shall be deemed to have elected ~~Combination~~ the Default Settlement in Method with respect ~~of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal~~ to ~~$1,000~~such conversion. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount 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 timely elect a Settlement Method or specify as applicable a Specified Dollar Amount shall not constitute a Default under this Indenture. By notice to ~~Holders of the Notes~~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 ~~September 1~~December 15, 2025. By notice to all Holders, the Company may, prior to December 15, 2025, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through a 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 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 $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 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~~. Not later than three Business Days after providing notice~~ ; provided that no such change or election will affect any Settlement Method theretofore elected (or deemed to ~~Holders, the Trustee and the Conversion Agent (if other than the Trustee~~be elected) ~~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 electionany Note. For the avoidance of doubt, such an irrevocable election, if ~~made~~made by the Company, will be effective without the need to amend this ~~Second Supplemental~~ Indenture or the Notes, including pursuant to Section ~~9.02(i~~10.01(m). However, the Company ~~may, nonetheless,~~ 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 either post the Default Settlement Method 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 successor form) that is filed with the Commission. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (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 number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 40 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 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~~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 the amount of cash payable in lieu of delivering any fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to ~~interest~~ any Special Interest payable on the next Special Interest Payment Date to which such Holder is not entitled as set forth in Section ~~11.02(h~~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~~ 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 ~~11.02(h~~14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 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 ~~12.03~~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~~, 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 ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical ~~Settlement~~Settlement (provided that, with respect to any Conversion Date following 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, in the case of any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to a converting ~~Holders~~Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be entitled, in ~~certificate form or in~~ book-entry ~~format~~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 (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 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 ~~11.04~~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 1114. (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~~Special Interest, if any, except as set forth below~~, and the Company shall not adjust the Conversion Rate to adjust for any accrued and unpaid interest on 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~~Special Interest, if any, to, but ~~excluding~~not including, the relevant Conversion Date. As a result, accrued and unpaid ~~interest~~Special Interest, if any, to, but ~~excluding~~not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common ~~Shares~~Stock, any accrued and unpaid ~~interest~~ 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~~Date 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 payable, on such~~ any Special Interest ~~Payment Date,~~ payable on the Notes so converted; 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 ~~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 Interest Payment Date; or (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts exist at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the Common Shares shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects (or is deemed to have elected) to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional Common Shares upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Common Shares issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of Common Shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional Common Shares remaining after such computation shall be paid in cash.corres

Appears in 1 contract

Sources: Indenture (Oak Street Health, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~14.02, Section ~~11.03(b)~~ 14.03(b), Section 14.07(a), Section 14.13 and Section ~~11.07(a)~~14.14, upon conversion of any Note, the Company shall ~~pay~~ satisfy its Conversion Obligation by paying or ~~deliver~~delivering, as the case may be, to the converting Holder, in respect of ~~each $1,000 principal amount of~~ Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~14.02. (i) All conversions for which the relevant Conversion ~~Date~~ Dates occurs (x) on or after ~~September 1~~November 15, ~~2025~~ 2028 shall be settled using the same Settlement Method or (y) in connection with a Forced Conversion shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs on or after ~~September 1~~November 15, ~~2025~~2028, the Company shall use the same Settlement Method for all conversions ~~with~~ occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions ~~with~~ that occur on different Conversion Dates. (iii) If, in respect of any Conversion Date (or ~~the period described~~ in the ~~third immediately succeeding set~~ case of ~~parentheses~~any conversions occurring or after November 15, ~~as the case may be~~2028), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the ~~Company, through the Trustee,~~ 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 ~~second~~ Scheduled Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions ~~for which the relevant Conversion Date occurs~~ occurring on or after ~~September 1~~November 15, ~~2025~~2028, no later than ~~September 1~~the close of business on Scheduled Trading Day immediately preceding November 15, ~~2025~~2028) (in each case, the “Settlement Method Election Deadline”). If the Company does not timely elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall ~~no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall~~ be deemed to have elected ~~Combination~~ Physical Settlement in respect of its Conversion Obligation~~, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000~~. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount 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 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~~Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to ~~September 1~~November 15, ~~2025~~2028, 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 at least $1,000 for all Conversion Dates occurring subsequent to delivery of such notice. ~~Not later than three Business Days~~ 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 ~~providing notice to Holders~~the date of such election, inform Holders converting their Notes, the Trustee and the Conversion Agent (if other than the Trustee) of an 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 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 electionany Note. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this ~~Second Supplemental~~ Indenture or the Notes, including pursuant to Section ~~9.02(i~~10.01(l). However, the Company ~~may, nonetheless,~~ 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)(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 successor form) that is filed with the Commission. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) subject to Section 14.14, 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~~ the Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the product of (A) the Applicable Conversion Multiplier and (B) the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of ~~each $1,000 principal amount of~~ the Notes being converted cash in an amount equal to the product of (A) the Applicable Conversion Multiplier and (B) the sum of the Daily Conversion Values for each of the 50 40 consecutive Trading Days during the related Observation Period; and (C) subject to Section 14.14, if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of ~~each $1,000 principal amount of~~ the Notes being converted, a Settlement Amount equal to the product of (A) the Applicable Conversion Multiplier and (B) the sum of the Daily Settlement Amounts for each of the 50 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~~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 the amount of cash payable in lieu of delivering fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~11.02(h~~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~~ facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable 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 ~~11.02(h~~14.02(h). The Trustee (~~and~~ and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 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 ~~12.03~~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~~, 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 11.03(b~~‎Section 14.03(b) and Section ~~11.07(a~~14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the second Business Day immediately following the last Trading Day of the relevant Observation Period, in the case of any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to a converting ~~Holders~~Holder, the Company shall issue or cause to be issued, and deliver ~~(if applicable)~~ to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, 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 certificate form or in book-entry format,~~ entitled 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 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 ~~11.04~~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 1114. (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 PIK Payment for accrued and unpaid interest, if any, except as set forth below~~, and the Company shall not adjust the Conversion Rate to adjust for any accrued and unpaid interest on 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 excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of ~~interest payable, on such~~ Cash Interest ~~Payment Date,~~ payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a 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 Forced Conversion 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 (34) to the extent of any Defaulted Amounts, if any Defaulted Amounts ~~exist~~ 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 Forced Conversion Date, in each case, as described above, shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date via Cash Interest regardless of whether their Notes have been converted and/or repurchased, as applicable, following such Regular Record Date. (i) The Person in whose name the certificate for any shares of Common ~~Shares shall be issuable~~ Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common ~~Shares~~ Stock issuable upon conversion based on the Daily VWAP ~~for~~ on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of Common Shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional Common Shares remaining after such computation shall be paid in cash.Dail

Appears in 1 contract

Sources: Indenture (fuboTV Inc. /FL)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~14.02, Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), upon conversion of any Note, the Company shall ~~pay~~ satisfy its Conversion Obligation by paying or ~~deliver~~delivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~14.02. (i) All conversions for which the relevant Conversion ~~Date~~ Dates occurs (x) on or after ~~September~~ February 1, ~~2025~~ 2023 shall be settled using the same Settlement Method or (y) during a Redemption Period shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs during a Redemption Period and any conversions for which the relevant Conversion Date occurs on or after ~~September~~ February 1, ~~2025~~2023, 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 ~~the period described~~ in the ~~third immediately succeeding set~~ case of ~~parentheses~~any conversions occurring (x) during a Redemption Period or (y) on or after February 1, ~~as the case may be~~2023), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the ~~Company, through the Trustee,~~ Company shall deliver such Settlement Notice to converting Holders and the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the ~~second~~ Scheduled Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions ~~for which the relevant Conversion Date occurs~~ occurring (x) during a Redemption Period, in such Redemption Notice, or (y) on or after ~~September~~ February 1, ~~2025~~2023, no later than ~~September~~ the close of business on Business Day immediately preceding February 1, ~~2025~~2023). If the Company does not timely elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement for such conversion on the relevant conversion date or during the relevant period and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. 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 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 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)~~Holders, the Company may, prior to ~~September~~ February 1, ~~2025~~2023, 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 need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its option. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 40 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 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~~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 the amount of cash payable in lieu of delivering fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~11.02(h~~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~~ facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable 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 ~~11.02(h~~14.02(h). The Trustee (~~and~~ and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 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 ~~12.03~~15.03. If more than one Note shall be surrendered for conversion at any one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) 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 ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or or, in the case of any other Settlement Method, on the second Business Day immediately following the last Trading Day of the relevant Observation Period~~, in the case of any other Settlement Method~~. If any shares of Common ~~Shares~~ Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver ~~(if applicable)~~ to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be ~~entitled, in certificate form or in book-entry format,~~ entitled 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 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 ~~11.04~~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 1114. (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~~, and the Company shall not adjust the Conversion Rate to adjust for any accrued and unpaid interest on 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 ~~excluding~~not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a 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 (34) to the extent of any Defaulted Amounts, if any Defaulted Amounts ~~exist~~ 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 described in clause (2) of the immediately preceding sentence or any Redemption Date described in clause (3) of the immediately preceding sentence, 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 the certificate for any shares of Common ~~Shares shall be issuable~~ Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common ~~Shares~~ Stock issuable upon conversion based on the Daily VWAP ~~for~~ on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP ~~for~~ on the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of ~~Common Shares~~ shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional ~~Common Shares~~ shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Sources: Indenture (Rapid7, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this ~~Section 11.02~~‎Section 14.02, Section ~~11.03(b~~14.03(b) and ~~Section 11.07(a~~‎Section 14.07(a), upon conversion of any Note, the Company shall ~~pay~~ satisfy its Conversion Obligation by paying or ~~deliver~~delivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j‎(j) of this ~~Section 11.02~~ ‎Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j‎(j) of this ~~Section 11.02~~ ‎Section 14.02 (“Combination Settlement”), at its election, as set forth in this ~~Section 11.02~~‎Section 14.02. (i) All conversions ~~for which the relevant Conversion Date occurs~~ occurring on or after ~~September 1~~February 15, ~~2025~~ 2023 shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs on or after ~~September 1~~February 15, ~~2025~~2023, 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 February 15, 2023, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through Combination Settlement with a specified dollar amount per $1,000 principal amount of Notes of $1,000 for all Conversion Dates occurring subsequent to delivery of such notice. (iii) If, in respect of any Conversion Date (or ~~the period described~~ in the ~~third~~ case of any conversions occurring on or after February 15, 2023, no later than the close of business on the Business Day immediately ~~succeeding set of parentheses~~preceding February 15, ~~as the case may be~~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)) to converting Holders, the ~~Company, through~~ 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 ~~second~~ Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions ~~for which the relevant Conversion Date occurs~~ occurring on or after ~~September 1~~February 15, ~~2025~~2023, no later than ~~September 1~~the close of business on the Business Day immediately preceding February 15, ~~2025~~2023). If the Company does not timely elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement for such conversion or during such period and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. 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 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 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 need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its option. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 40 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, 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 50 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~~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 the amount of cash payable in lieu of delivering fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to ~~Section 11.02(e~~‎Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the ~~procedures of the Depositary~~ 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 11.02(h~~‎Section 14.02(h) (and, if required, pay all transfer or similar taxes, if any, as set forth in ‎Section 14.02(e)) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a ~~facsimile~~ facsimile, PDF or other electronic transmission thereof) (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 11.02(h~~‎Section 14.02(h). The Trustee (~~and~~ and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this ~~Article 11~~ ‎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 12.03~~‎Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered~~, 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(b) above. Except as set forth in ~~Section 11.03(b~~‎Section 14.03(b) and ~~Section 11.07(a~~‎Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical ~~Settlement~~Settlement (provided that, with respect to any Conversion Date 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, in the case of any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver ~~(if applicable) to the Conversion Agent or~~ to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be ~~entitled, in certificate form or in book-entry format,~~ entitled 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 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 11.04~~‎Section 14.04, no adjustment shall be made for dividends on any shares of Common ~~Shares~~ Stock issued upon the conversion of any Note as provided in this Article 1114. (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, and~~ below in the ~~Company shall not adjust the Conversion Rate to adjust for any accrued and unpaid interest on the Notes~~fifth sentence of this paragraph. 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 excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a 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 (3) to the extent of any ~~Defaulted Amounts~~overdue interest, if any ~~Defaulted Amounts exist~~ overdue interest exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the certificate for any shares of Common ~~Shares shall be issuable~~ Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common ~~Shares~~ Stock issuable upon conversion based on the Daily VWAP ~~for~~ on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP ~~for~~ on the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of ~~Common Shares~~ shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional ~~Common Shares~~ shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Sources: Indenture (Vocera Communications, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~14.02, Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), upon conversion of any Note, the Company shall ~~pay~~ satisfy its Conversion Obligation by paying or ~~deliver~~delivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~14.02. (i) All conversions of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period, and all conversions for which the relevant Conversion Date occurs on or after ~~September~~ March 1, ~~2025~~ 2028, shall be settled using the same Settlement Method. (ii) Except for any conversions of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period, and any conversions for which the relevant Conversion Date occurs on or after ~~September~~ March 1, ~~2025~~2028, 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 conversions of Called Notes for which the ~~period~~ relevant Conversion Date occurs during the related Redemption Period, or any conversions for which the relevant Conversion Date occurs on or after March 1, 2028 or for which the Company has irrevocably elected Physical Settlement pursuant to Section 14.01(b)(ii) in a notice as described in ~~the third immediately succeeding set of parentheses, as the case may be~~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, through the Trustee,~~ 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 ~~second~~ Trading Day immediately following the relevant Conversion Date (or, in the case of (A) any conversions of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period, in the related Notice of Redemption, (B) any conversions of Notes for which the relevant Conversion Date occurs on or after ~~September~~ March 1, ~~2025~~2028, no later than ~~September~~ March 1, ~~2025~~2028 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). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect ~~Cash~~ a Settlement Method with respect to any conversion on such Conversion Date or ~~Physical Settlement~~ during such period, and the Company shall be deemed to have elected ~~Combination~~ the Default Settlement in Method with respect ~~of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal~~ to ~~$1,000~~such conversion. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount 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 timely elect a Settlement Method or specify as applicable a Specified Dollar Amount shall not constitute a Default under this Indenture. By notice to ~~Holders of the Notes~~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 ~~September~~ March 1, ~~2025~~2028. By notice to all Holders, the Company may, prior to March 1, 2028, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through a 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 ~~for all Conversion Dates occurring subsequent~~ or with an ability to ~~delivery~~ 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 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 ~~notice. Not later than three Business Days after providing notice to Holders~~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 ~~an irrevocable~~ such Specified Dollar Amount no later than the relevant deadline for election ~~with respect to the~~ of a specified Settlement Method as ~~described~~ set forth in the immediately preceding ~~sentence~~paragraph, 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. A change in the Default Settlement Method or an irrevocable election shall ~~issue a Current Report on Form 8-K~~ apply for all conversions of Notes with Conversion Dates occurring subsequent to delivery of such notice; provided that no such change or ~~press release~~ election will affect any Settlement Method theretofore elected (or ~~otherwise provide public disclosure in a manner compliant~~ deemed to be elected) with ~~Regulation FD announcing that the Company has made such irrevocable election~~respect to any Note. For the avoidance of doubt, such an irrevocable election, if ~~made~~made by the Company, will be effective without the need to amend this ~~Second Supplemental~~ Indenture or the Notes, including pursuant to Section ~~9.02(i~~10.01(m). However, the Company ~~may, nonetheless,~~ 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 either post the Default Settlement Method 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 successor form) that is filed with the Commission. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (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 number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 40 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 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~~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 the amount of cash payable in lieu of delivering any fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~11.02(h~~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~~ 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 ~~11.02(h~~14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 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 ~~12.03~~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~~, 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 ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical ~~Settlement~~Settlement (provided that, with respect to any Conversion Date following the Regular Record Date immediately preceding the Maturity Date where Physical Settlement applies to the related conversion, the Company shall settle any such conversion on the Maturity Date), or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to a converting ~~Holders~~Holder, the Company shall issue ~~or cause to be issued,~~ and deliver (if applicable) to (or cause the Conversion Agent or to issue and deliver (if applicable)) 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~~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 (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 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 ~~11.04~~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 1114. (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~~, and the Company shall not adjust the Conversion Rate to adjust for any accrued and unpaid interest on 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 ~~excluding~~not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date but prior to the open of business on the corresponding 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 (to, but not including, such 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~~ Date, however, must be accompanied by funds equal to the amount of interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so ~~converted~~converted on the corresponding Interest Payment Date (regardless of whether the converting Holder was the Holder of record on the corresponding Regular Record Date); provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) 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 (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts exist at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the Common Shares shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects (or is deemed to have elected) to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional Common Shares upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Common Shares issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of Common Shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional Common Shares remaining after such computation shall be paid in cash.follo

Appears in 1 contract

Sources: Indenture (TransMedics Group, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~14.01(b)(v), Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), upon conversion of any Note, 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, cash (“Cash Settlement”), ~~Common Shares~~shares of Class C Capital Stock, together with cash, if applicable, in lieu of delivering any fractional ~~Common Shares~~ share of Class C Capital Stock in accordance with subsection (j) of ~~this~~ this Section ~~11.02~~ 14.01 (b)(v) (“Physical Settlement”) or a combination of cash and ~~Common Shares~~shares of Class C Capital Stock, together with cash, if applicable, in lieu of delivering any fractional ~~Common Shares~~ share of Class C Capital Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.01(b)(v) (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~14.01(b)(v). (i) All conversions for which the relevant Conversion Date occurs on or after ~~September 1~~[ ], ~~2025~~ 20[ ], and all conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date, shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption 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 ~~September 1~~[ ], ~~2025~~20[ ], the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion Date (or one of the ~~period~~ periods described in the third immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the 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 for which the relevant Conversion Date occurs (x) 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 or (y) on or after ~~September 1~~[ ], ~~2025~~20[ ], no later than ~~September 1~~[ ], ~~2025~~20[ ]). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. 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 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 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 need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its option. (iv) The cash, ~~Common Shares~~ shares of Class C Capital Stock or combination of cash and ~~Common Shares~~ shares of Class C Capital Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of ~~Common Shares~~ shares of Class C Capital Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 [ ] consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, 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 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~~share of Class C Capital 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 the amount of cash payable in lieu of delivering fractional ~~Common Shares~~shares of Class C Capital Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~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 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 ~~11.02(h~~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 thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ~~Common Shares~~ shares of Class C Capital Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~11.02(h~~14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered 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 ~~12.03~~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~~, 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 ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the ~~second~~ third Business Day immediately following the relevant Conversion Date, if the Company elects Physical ~~Settlement~~Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Company shall deliver the consideration due in respect of the Conversion Obligation on the Maturity Date), or on the ~~second~~ third Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any ~~Common Shares~~ shares of Class C Capital Stock are due to a converting ~~Holders~~Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of ~~Common Shares~~ shares of Class C Capital Stock to which such Holder shall be entitled, in certificate form or in book-entry format, 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~~ shares of Class C Capital Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the ~~Common Shares~~ shares of Class C Capital Stock being issued in a name other than the Holder’s name until the 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 ~~11.04~~14.04, no adjustment shall be made for dividends on any ~~Common Shares~~ shares of Class C Capital Stock issued upon the conversion of any Note as provided in this Article 1114. (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~~, and the Company shall not adjust the Conversion Rate to adjust for any accrued and unpaid interest on 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 ~~excluding~~not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and ~~Common Shares~~shares of Class C Capital Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the 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 (34) to the extent of any Defaulted Amounts, if any Defaulted Amounts ~~exist~~ exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the ~~Common Shares~~ shares of Class C Capital Stock shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional ~~Common Shares~~ share of Class C Capital Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional ~~Common Shares~~ share of Class C Capital Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of ~~Common Shares~~ shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional ~~Common Shares~~ shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Sources: Indenture (Zillow Group, Inc.)

Appears in 1 contract

Sources: Supplemental Indenture (NantHealth, Inc.)

Appears in 1 contract

Sources: Indenture (BridgeBio Pharma, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) . (a) Subject to this Section ~~11.02~~14.02, Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), upon conversion of any Note, the Company ~~shall~~ shall, at its election, pay or deliver, as the case may be, to the converting Holder, in ~~respect~~ full satisfaction of ~~each $1,000 principal amount of Notes being converted~~its Conversion Obligation, cash (“Cash Settlement”), shares of the Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with ~~subsection (j~~Section 14.02(i) ~~of this Section 11.02~~ (“Physical Settlement”) ), or a combination of cash and shares of the Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with ~~subsection (j~~Section 14.02(i) ~~of this Section 11.02~~ (“Combination Settlement”), ~~at its election,~~ as set forth in this Section ~~11.02~~14.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~September~~ November 1, ~~2025~~ 2023 shall be settled using the same Settlement ~~Method.~~ Method (~~ii)~~ including the same relative proportion of cash and/or shares of the Common Stock). Except for any conversions for which the relevant Conversion Date occurs on or after ~~September~~ November 1, ~~2025~~2023, the Company shall use the same Settlement Method (including the same relative proportion of cash and/or shares of the Common Stock) for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (~~iii~~ii) ~~If, in respect of any Conversion Date (or~~ If the ~~period described in the third immediately succeeding set of parentheses, as the case may be)~~Company elects a Settlement Method, the Company ~~elects~~ shall deliver notice to ~~deliver a notice (~~Holders through the ~~“Settlement Notice”)~~ Conversion Agent of ~~the relevant~~ such Settlement Method ~~in respect of such Conversion Date (or such period, as~~ the ~~case may be), the Company, through the Trustee, shall deliver such Settlement Notice to converting Holders~~ Company has selected no later than the close of business on the ~~second~~ Trading Day immediately following the ~~relevant~~ related Conversion Date (~~or,~~ or in the case of any conversions for which the relevant Conversion Date occurs on or after ~~September~~ November 1, ~~2025~~2023, no later than ~~September~~ November 1, ~~2025~~2023). If the Company does not timely elect a Settlement ~~Method prior to the deadline set forth in the immediately preceding sentence~~Method, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to that Conversion Date and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. ~~Such~~ If the Company has timely elected Combination Settlement ~~Notice shall specify~~ in respect of any conversion but does not timely notify the ~~relevant Settlement Method and in the case~~ Conversion Agent 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 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 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 need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such 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: (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 number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate ~~in effect~~ on the Conversion ~~Date~~Date (plus cash in lieu of any fractional share of Common Stock issuable upon conversion); (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 consecutive VWAP Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being ~~converted,~~ converted a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 consecutive VWAP Trading Days during the related Observation ~~Period~~Period (plus cash in lieu of any fractional share of Common Stock issuable upon conversion). 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 hereby) so surrendered. (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~~ 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~~ and, if applicable, the amount of cash payable in lieu of ~~delivering~~ any fractional share of Common ~~Share~~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~~ and, if applicable, the amount of cash payable in lieu of ~~delivering~~ fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (bi) ~~Subject to Section 11.02(e~~To convert a beneficial interest in a Global Note (which conversion is irrevocable), ~~before any Holder~~ the holder of ~~a Note shall be entitled to convert a Note as set forth above,~~ such ~~Holder shall~~ beneficial interest must: (iA) ~~in the case of a Global Note,~~ comply with the ~~procedures of the Depositary in effect at that time and,~~ 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 ~~11.02(h) and~~ 14.02(g); and (ii) in To convert a Certificated Note, the ~~case of a Physical Note~~ Holder must: (1A) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile thereof) (a “Notice of Conversion”) ~~at the office of the Conversion Agent~~ and ~~state in writing therein the principal amount of Notes~~ such Note 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, ; (3B) if required, furnish appropriate endorsements and transfer ~~documents and~~ documents; (4C) 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 ~~11.02(h~~14.02(g). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 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. ~~No Notice of Conversion with respect to any Notes may be surrendered by~~ If a Holder ~~thereof if such Holder~~ has ~~also~~ already delivered a Fundamental Change Repurchase Notice with respect to ~~the Company in respect of~~ a Note, such ~~Notes and~~ Holder may not surrender such Note for conversion until such Holder has ~~not~~ validly withdrawn such Fundamental Change Repurchase Notice ~~in accordance with Section 12.03. If more than one Note shall be surrendered for conversion at one time by the same Holder~~(or, 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 11.03(b) and Section 11.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any Common Shares are due to converting Holders, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of Common Shares to which such Holder shall be entitled, in certificate form or in book-entry format, 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~~ has complied with the ~~principal balance of~~ Applicable Procedures with respect to such a ~~Global Note to be adjusted~~ withdrawal) in accordance with the ~~procedures~~ terms 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) Section 15.03. 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 11.04, no adjustment shall be made for dividends on any Common Shares issued upon the conversion of any Note as provided in this Article 11. (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, and the Company shall not adjust the Conversion Rate to adjust for any accrued and unpaid interest on 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 excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and 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 such Interest Payment Date, on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has ~~specified~~ 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 (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts exist~~ repurchase will terminate at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the Common Shares shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the ~~relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading~~ Business Day of immediately preceding the relevant Observation Period (if the Company elects (or is deemed to have elected) to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversionFundamental Change Repurchase Date. (j) The Company shall not issue any fractional Common Shares upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Common Shares issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of Common Shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional Common Shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Sources: Indenture (Conmed Corp)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~14.02, Section ~~11.03(b~~14.04(b) and Section ~~11.07(a~~14.09(a), upon conversion of any Note, 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, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~14.02. (i) All conversions for which the relevant Conversion Date occurs (x) during the period from, and including, June 15, 2019 to, and including, the close of business on the Business Day immediately preceding the Maturity Date, or (y) after ~~September 1~~the Company’s issuance of a Notice of Redemption and prior to the close of business on the Business Day immediately preceding the Redemption Date, ~~2025~~ in each case, shall be settled using the same Settlement Method. (ii) Except for any conversions ~~for which the relevant Conversion Date occurs on or after September 1, 2025~~described in Section 14.02(a)(i), the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but (unless (x) the Company has not received the Conversion Approval, in which case, the Company shall be required to settle the relevant conversion by Combination Settlement with a Specified Dollar Amount of at least $1,000 or (y) the Company has not received the Affiliate Investment Approval, in which case, the Company shall be required to settle the relevant conversion by Cash Settlement for all Affiliated Notes submitted for conversion, as well as any other Notes submitted for conversion with the same Conversion Date as an Affiliated Note), the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) IfSubject to this Section 14.02(a), if, in respect of any Conversion ~~Date (or the period described in the third immediately succeeding set of parentheses, as the case may be)~~Date, the Company elects to a Settlement Method, the Company, shall deliver a settlement notice (the “Settlement Notice”) ~~of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the 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 ~~for which~~ occurring (x) during the ~~relevant Conversion Date occurs~~ period from, and including, June 15, 2019 to the close of business on ~~or after September 1, 2025~~the Business Day immediately preceding the Maturity Date, no later than ~~September 1~~the close of business on June 15, ~~2025~~2019, or (y) after the date of the issuance of a Notice of Redemption and prior to the close of business on the Business Day immediately preceding the Redemption Date, in such Notice of Redemption). 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 deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. ~~Such Settlement Notice shall specify~~ If the ~~relevant Settlement Method and in the case of an election of~~ Company elects (or is deemed to have elected) Combination Settlement, but the ~~relevant Settlement Notice shall indicate~~ Company does not specify the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement NoticeAmount, the Specified Dollar Amount ~~per $1,000 principal amount of Notes shall~~ will be deemed to be $1,000~~. By notice~~ . (iv) Notwithstanding anything in this Indenture to ~~Holders of~~ the ~~Notes~~contrary, (A) unless and until the ~~Trustee and~~ Company obtains the Conversion ~~Agent~~ Approval, (~~if other than~~ x) the ~~Trustee),~~ number of shares of Common Stock deliverable upon conversion will be subject to the Conversion Share Cap and (y) the Company ~~may, prior~~ will be required 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~~ at least $1,000 for all Notes submitted for conversion (which means the Company will be obligated to settle its Conversion ~~Dates occurring subsequent~~ Obligation by paying up to ~~delivery~~ at least the principal amount of such ~~notice~~Notes in cash and delivering shares of Common Stock for the remaining Settlement Amount, if any, in excess of the Specified Dollar Amount) and, if the number of shares of Common Stock deliverable for the Settlement Amount in excess of the Specified Dollar Amount would result in the issuance of shares of Common Stock in excess of the Conversion Share Cap, then the Company shall pay cash in lieu of the shares of Common Stock that would otherwise be deliverable in respect any Trading Day during the relevant Observation Period based on the Daily VWAP for such Trading Day; and (B) unless and until the Company obtains the Affiliate Investment Approval, the Company will be required to elect Cash Settlement for all Affiliated Notes submitted for conversion, as well as any other Notes submitted for conversion with the same Conversion Date as an Affiliated Note. ~~Not later than three Business Days after providing notice to~~ If the Company receives Conversion Approval and/or Affiliate Investment Approval on any day, it shall so notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) ~~of an irrevocable election with respect~~ in writing within one Business Day. (v) Subject 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 this Section 14.02(a) (including for the avoidance of doubt, ~~such an irrevocable election~~the provisions of Section 14.02(a)(iv)), ~~if made~~prior to the close of business on the Business Day immediately preceding June 15, ~~will be effective without the need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However~~2019, the Company ~~may~~may irrevocably elect, ~~nonetheless~~in the Company’s sole discretion without the consent of the Holders, ~~choose~~ to ~~execute~~ settle all conversions through Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes equal to $1,000, and cash, shares of Common Stock or a combination thereof in respect of the remainder, if any, of the Company’s Conversion Obligation (“Net Share Settlement Election”); provided that any election to settle the remainder shall be made by specifying a Specified Dollar Amount per $1,000 in accordance with the procedures of this Section 14.02(a)(v). Upon making the Net Share Settlement Election, the Company shall promptly (x) use its reasonable efforts to post such ~~an amendment at~~ information on its ~~option~~website or otherwise publicly disclose this information and (y) provide written notice to the Holders thereof. (ivvi) ~~The~~ With respect to any conversion and subject to this Section 14.02(a), the cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion ~~Date~~Date and the Interest Make-Whole Payment, if applicable; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 consecutive Trading Days during the related Observation ~~Period~~Period and the Interest Make-Whole Payment, if applicable; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, 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 50 consecutive Trading Days during the ~~related~~ relevant Observation ~~Period~~Period and the Interest Make-Whole Payment, if applicable. (vvii) 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~~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 the amount of cash payable in lieu of delivering fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section 11.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the 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 11.02(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 thereof) (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 11.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered 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 12.03. 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 11.03(b) and Section 11.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any Common Shares are due to converting Holders, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of Common Shares to which such Holder shall be entitled, in certificate form or in book-entry format, 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 11.04, no adjustment shall be made for dividends on any Common Shares issued upon the conversion of any Note as provided in this Article 11. (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, and the Company shall not adjust the Conversion Rate to adjust for any accrued and unpaid interest on 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 excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and 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 such Interest Payment Date, on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a 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 (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts exist at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the Common Shares shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects (or is deemed to have elected) to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional Common Shares upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Common Shares issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of Common Shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional Common Shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Sources: Indenture (Cyan Inc)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~14.02, Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), upon conversion of any Note, 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, cash (“Cash Settlement”), ~~Common Shares~~shares of Class C Capital Stock, together with cash, if applicable, in lieu of delivering any fractional ~~Common Shares~~ share of Class C Capital Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Physical Settlement”) or a combination of cash and ~~Common Shares~~shares of Class C Capital Stock, together with cash, if applicable, in lieu of delivering any fractional ~~Common Shares~~ share of Class C Capital Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~14.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~September 1~~November 15, ~~2025~~ 2024, and all conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date, shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption 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 ~~September 1~~November 15, ~~2025~~2024, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion Date (or one of the ~~period~~ periods described in the third immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the 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 for which the relevant Conversion Date occurs (x) 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 or (y) on or after ~~September 1~~November 15, ~~2025~~2024, no later than ~~September 1~~November 15, ~~2025~~2024). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. 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 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 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 need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its option. (iv) The cash, ~~Common Shares~~ shares of Class C Capital Stock or combination of cash and ~~Common Shares~~ shares of Class C Capital Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of ~~Common Shares~~ shares of Class C Capital Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 40 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, 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 50 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~~share of Class C Capital 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 the amount of cash payable in lieu of delivering fractional ~~Common Shares~~shares of Class C Capital Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~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 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 ~~11.02(h~~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 thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ~~Common Shares~~ shares of Class C Capital Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~11.02(h~~14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered 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 ~~12.03~~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~~, 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 ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical ~~Settlement~~Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Company shall deliver the consideration due in respect of the Conversion Obligation on the Maturity Date), or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any ~~Common Shares~~ shares of Class C Capital Stock are due to a converting ~~Holders~~Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of ~~Common Shares~~ shares of Class C Capital Stock to which such Holder shall be entitled, in certificate form or in book-entry format, 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~~ shares of Class C Capital Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the ~~Common Shares~~ shares of Class C Capital Stock being issued in a name other than the Holder’s name until the 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 ~~11.04~~14.04, no adjustment shall be made for dividends on any ~~Common Shares~~ shares of Class C Capital Stock issued upon the conversion of any Note as provided in this Article 1114. (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~~, and the Company shall not adjust the Conversion Rate to adjust for any accrued and unpaid interest on 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 ~~excluding~~not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and ~~Common Shares~~shares of Class C Capital Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Scheduled Trading 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 following the corresponding Interest Payment Date; or (34) to the extent of any Defaulted Amounts, if any Defaulted Amounts ~~exist~~ exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the ~~Common Shares~~ shares of Class C Capital Stock shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional ~~Common Shares~~ share of Class C Capital Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional ~~Common Shares~~ share of Class C Capital Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of ~~Common Shares~~ shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional ~~Common Shares~~ shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Sources: Indenture (Zillow Group, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) . (a) Subject to this Section ~~11.02~~14.02, Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), upon conversion of any Note, the Company shall pay cash up to the aggregate principal amount of the Notes to be converted and pay or deliver, as the case may be, to the converting Holder, cash, shares of Common Stock or a combination of cash and shares of Common Stock, at its election, in respect of the remainder, if any, of its Conversion Obligation in excess of the aggregate principal amount of the Notes being converted. Upon conversion, the Company shall 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, cash~~ converted (a “~~Cash Settlement~~Settlement Amount”~~), Common Shares~~) equal to the sum of the Daily Settlement Amounts for each of the 40 VWAP Trading Days during the relevant Observation Period for such Note, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with ~~subsection (j) of this~~ Section 11.02 (“Physical Settlement”) or a combination of cash and Common Shares, together with cash, if applicable, in lieu of delivering any fractional Common Shares in accordance with subsection (j) of this Section 11.02 (“Combination Settlement”14.02(i)~~, at its election~~, as set forth in this Section ~~11.02~~14.02. (i) All conversions of Notes (a) for which the relevant Conversion Date occurs on or after ~~September 1~~December 15, ~~2025~~ 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 (c) following the Company’s Irrevocable Election Notice pursuant to Section 14.02(a)(ii), in each case, shall be settled using the same ~~Settlement Method. (ii)~~ forms and amounts of considerations. Except for (a) any conversions for which the relevant Conversion Date occurs on or after ~~September 1~~December 15, 2025, (b) 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 (c) any conversion following the Company’s Irrevocable Election Notice pursuant to Section 14.02(a)(ii), in each case, 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 considerations with respect to conversions with different Conversion Dates. (~~iii~~ii) ~~If, in respect of any Conversion Date (or the period described in the third immediately succeeding set of parentheses, as the case may be),~~ If the Company elects to settle all or a portion of the Conversion Obligation in excess of the principal portion of the Notes being converted in cash, the Company shall deliver a notice to Holders so converting, the Trustee and the Conversion Agent (if other than the ~~“Settlement Notice”~~Trustee) of ~~the relevant Settlement Method in respect of~~ such ~~Conversion Date (or such period, as the case may be), the Company, through the Trustee, shall deliver such Settlement Notice to converting Holders~~ election no later than the close of business on the ~~second~~ Trading Day immediately following the ~~relevant~~ related Conversion ~~Date (or~~Date, or in the case of any conversions for which the relevant Conversion Date occurs ~~on or~~ after ~~September 1~~December 15, 2025, no later than ~~September 1~~December 15, 2025), or 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 preceding the relevant Redemption Date, in the Notice of Redemption and the Company shall indicate in such notice the Cash Percentage. If the Company does not elect a ~~Settlement Method~~ Cash Percentage prior to the deadline set forth in the ~~immediately~~ preceding sentence, the Company shall no longer have the right to elect a Cash ~~Settlement~~ Percentage with respect to that Conversion Date or ~~Physical Settlement~~ during such period and the Company shall ~~be deemed to have elected Combination Settlement~~ settle its Conversion Obligation by paying cash in respect of ~~its Conversion Obligation,~~ the principal portion of the converted Notes and ~~the Specified Dollar Amount per $1,000 principal amount~~ delivering shares of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement Common Stock in respect of the remainder, if any, 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 ~~in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000~~being converted. By notice to ~~Holders of the Notes~~Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to ~~September 1~~the close of business on the Scheduled Trading Day immediately preceding December 15, 2025, at its option, irrevocably elect (an “Irrevocable Election Notice”) to satisfy its Conversion ~~Obligation with respect~~ Obligations in excess of the principal portion of the Notes submitted for conversion subsequent to the ~~Notes~~ date of the Irrevocable Election Notice through a ~~Combination Settlement with a Specified Dollar Amount per~~ Cash Percentage of 0 percent for each $1,000 principal amount of ~~Notes of $1,000 for all Conversion Dates occurring subsequent to delivery of such notice~~Notes. ~~Not later than three Business Days after providing notice to Holders,~~ If the ~~Trustee and the Conversion Agent (if other than the Trustee) of~~ Company makes an ~~irrevocable election with respect to the Settlement Method as described in the immediately preceding sentence~~Irrevocable Election Notice, the Company ~~shall issue~~ shall, after the date of such election, either post the election on its website or disclose the same in a Current Report on Form 8-K (or ~~press release or otherwise provide public disclosure in a manner compliant~~ any successor form) that is filed 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 need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its optionCommission. (iviii) The cash, Common Shares or combination of cash and Common Shares in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of Common Shares equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, 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 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, 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 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 11.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the 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 11.02(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 thereof) (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 11.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered 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 12.03. If more than one Note shall be surrendered for conversion at any one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted ~~thereby~~hereby) so surrendered~~, subject, in the case of Global Notes, to the rules of the applicable Depositary~~. (civ) ~~A Note shall be deemed to have been converted immediately prior to the close of business on the date~~ The Daily Settlement Amounts (~~the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 11.03(b) and Section 11.07(a~~if applicable), the Daily Net Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be 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, the Daily Net Settlement Amounts or ~~deliver~~the Daily Conversion Values, as the case may be, ~~the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date~~and, if applicable, the ~~Company elects Physical Settlement, or on the second Business Day immediately following the last Trading Day~~ amount of ~~the Observation Period,~~ cash payable in ~~the case~~ lieu of any ~~other Settlement Method. If any~~ fractional share of Common ~~Shares are due to converting Holders~~Stock, the Company shall ~~issue or cause to be issued,~~ notify the Trustee and ~~deliver (if applicable) to~~ the Conversion Agent ~~or to such Holder, or such Holder’s nominee or nominees~~(if other than the Trustee) of the Daily Settlement Amounts, the ~~full number~~ Daily Net 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 ~~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 certificate form or in book-entry format, in satisfaction of the Company’s Conversion Obligation~~determination. (di) ~~In case any Note shall be surrendered for partial conversion, the Company (1)~~ To convert a beneficial interest in ~~the case of a Global Note, shall cause the principal balance of~~ a Global Note ~~to be adjusted in accordance~~ (which conversion is irrevocable), the holder of such beneficial interest must: (A) comply with the ~~procedures of the Depositary in effect at that time or~~ Applicable Procedures; (2B) ~~in the case of a Physical Note~~if required, 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 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 owed as set forth in 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 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, sign (by manual, electronic or ~~similar governmental charge required~~ facsimile signature) and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile or delivery by ~~law~~ electronic mail of a pdf thereof) (a “Notice of Conversion”) at the Corporate Trust Office or ~~that may be imposed in connection therewith as a result~~ 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 Stock to be delivered upon settlement of the ~~Holder~~ Conversion Obligations to be registered, and surrender such Note to the Conversion Agent at the Corporate Trust Office or the office of the ~~new Notes issued upon such conversion being different from~~ Conversion Agent (if other than the ~~name of the Holder of the old Notes surrendered for such conversion.~~Trustee); (eB) ~~If a Holder submits a Note for conversion~~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 to which such Holder is not entitled as set forth in Section 14.02(g). The Trustee (and if different, the Conversion Agent) shall notify the Company of any ~~Common Shares upon~~ conversion pursuant to this Article 14 on the Conversion Date for such conversion or, if notice on such date is not feasible given the nature of the conversion, ~~unless the tax is due because the~~ promptly thereafter. If a Holder ~~requests~~ has already delivered a Fundamental Change Repurchase Notice with respect to a Note, such ~~shares to be issued in a name other than the Holder’s name~~Holder may not surrender such Note for conversion until such Holder has validly withdrawn such Fundamental Change Repurchase Notice (or, in ~~which~~ the case of a Global Note, has complied with the ~~Holder shall pay that tax. The Conversion Agent may refuse~~ Applicable Procedures with respect to ~~deliver the certificates representing the Common Shares being issued in~~ such a ~~name other than the Holder’s name until the 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 11.04, no adjustment shall be made for dividends on any Common Shares issued upon the conversion of any Note as provided in this Article 11. (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, and the Company shall not adjust the Conversion Rate to adjust for any accrued and unpaid interest on 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 excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and 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 such Interest Payment Date, on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has ~~specified~~ 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 (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts exist~~ repurchase will terminate at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the Common Shares shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the Business Day immediately preceding the relevant ~~Conversion Date (if~~ Fundamental Change Repurchase Date. If the Company ~~elects~~ has designated a Redemption Date pursuant to ~~satisfy~~ Section 16.02, a Holder that complies with the ~~related Conversion Obligation by Physical Settlement~~requirements for conversion set forth in this Section 14.02(b) ~~or the last Trading Day of the relevant Observation Period (if the Company elects (or is~~ shall be deemed to have ~~elected) to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon~~ delivered a ~~conversion~~ notice of ~~Notes, such Person shall no longer be a Holder of such~~ its election not have its Notes ~~surrendered for conversion~~so redeemed. (j) The Company shall not issue any fractional Common Shares upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Common Shares issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of Common Shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional Common Shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Sources: Indenture (Itron, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~9.02, Section ~~11.03(b~~9.03(b) and Section ~~11.07(a~~9.07(a), upon conversion of any Note, 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, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 9.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 9.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~9.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~September 1~~October 15, ~~2025~~ 2022, and all conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date, shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption 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 ~~September 1~~October 15, ~~2025~~2022, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion Date (or one of the ~~period~~ periods described in the third immediately succeeding set of parentheses, 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 either such period, as the case may be), the Company, through the Trustee, shall deliver such Settlement Notice to converting ~~Holders~~ Holders, in accordance with Section 14.02 of the Base Indenture, no later than the close of business on the ~~second~~ Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs (x) 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 or (y) on or after ~~September 1~~October 15, ~~2025~~2022, no later than ~~September 1~~October 15, ~~2025~~2022). If the Company does not timely elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount ~~per $1,000 principal amount of Notes~~ shall be equal to $1,000. 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 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 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 need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its option. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock payable or deliverable by the Company in respect of any conversion of Notes (the “Settlement Amount”) shall be computed by the Company as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 40 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 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~~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 the amount of cash payable in lieu of delivering fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility or liability for any such determination. (b) Subject to Section ~~11.02(e~~9.02(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 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 ~~11.02(h~~9.02(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 thereof) to the Conversion Agent as set forth in the Form of Notice of Conversion ~~(or a facsimile thereof)~~ (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 ~~11.02(h~~9.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 9 on the Conversion Date for such conversion. No ~~Notice of Conversion with respect to any~~ Holder may surrender Notes ~~may be surrendered by a Holder thereof~~ for conversion 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 ~~12.03~~10.02 (or, in the case of a Global Note, if such Holder has requested a repurchase of Notes pursuant to Section 10.01 but has not withdrawn such request pursuant to Section 10.02, in each case, in compliance with the applicable procedures of the Depositary). 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~~, 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 ~~11.03(b~~9.03(b) and Section ~~11.07(a~~9.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the ~~second~~ third Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the ~~second~~ third Business Day immediately following the last Trading Day of the relevant Observation Period, in the case of any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to a converting ~~Holders~~Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to ~~the Conversion Agent or to~~ such Holder, or such Holder’s nominee or nominees, the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be entitled, in ~~certificate form or in~~ book-entry ~~format~~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 ~~(1) in the case of~~ shall deliver a ~~Global Note, shall cause the principal balance of a Global~~ Company Order and execute such 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~~ issuance of any shares of Common ~~Shares~~ Stock upon conversion, unless the tax is due because the Holder requests such shares of Common Stock 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 shares of the Common ~~Shares~~ Stock being issued in a name other than ~~the~~ such 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 ~~11.04~~9.04, 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 119. (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~~, and the Company shall not adjust the Conversion Rate to adjust for any accrued and unpaid interest on the Notes~~. 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 ~~excluding~~not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common ~~Shares~~Stock, accrued and unpaid interest ~~will~~ 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, 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~~ shall be accompanied by funds equal to the amount of interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (34) to the extent of any ~~Defaulted Amounts~~overdue interest, if any ~~Defaulted Amounts exist~~ overdue interest exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name ~~the~~ any shares of Common ~~Shares~~ Stock shall be issuable upon conversion shall ~~be treated as a stockholder~~ become the holder of record of such shares as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Combination Settlement)~~, as the case may be~~. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion; 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 full amount of interest payable on such Interest Payment Date, in accordance with clause (h) above. (j) The Company shall not issue any fractional share of Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common ~~Shares~~ Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to elect) Combination Settlement, the full number of ~~Common Shares~~ shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional ~~Common Shares~~ shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Sources: First Supplemental Indenture (Veeco Instruments Inc)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~14.02, Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), upon conversion of any Note, the Company shall ~~pay~~ satisfy its Conversion Obligation by paying or ~~deliver~~delivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~14.02. (i) All conversions for which the relevant Conversion ~~Date~~ Dates occurs (x) on or after ~~September~~ March 1, ~~2025~~ 2029 shall be settled using the same Settlement Method or (y) during a Redemption Period shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs during a Redemption Period and any conversions for which the relevant Conversion Date occurs on or after ~~September~~ March 1, ~~2025~~2029, 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 ~~the period described~~ in the ~~third immediately succeeding set~~ case of ~~parentheses~~any conversions occurring (x) during a Redemption Period or (y) on or after March 1, ~~as the case may be~~2029), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the ~~Company, through the Trustee,~~ 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 ~~second~~ Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions ~~for which the relevant Conversion Date occurs~~ occurring (x) during a Redemption Period, in such Redemption Notice, or (y) on or after ~~September~~ March 1, ~~2025~~2029, no later than ~~September~~ the close of business on the Trading Day immediately preceding March 1, ~~2025~~2029) (in each case, the “Settlement Method Election Deadline”). If the Company does not timely elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement for such conversion or during such period and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. 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 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 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~~Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to ~~September~~ March 1, ~~2025~~2029, 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 at least $1,000 for all Conversion Dates occurring subsequent to delivery of such ~~notice~~notice and for which another Settlement Method does not otherwise apply or is not otherwise deemed to apply. ~~Not~~ 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) of such Specified Dollar Amount no later than ~~three Business Days after~~ 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 shall 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 an its irrevocable election to satisfy its Conversion Obligation through Combination Settlement with ~~respect to the Settlement Method as described in the immediately preceding sentence~~a Specified Dollar Amount per $1,000 principal amount of Notes of at least $1,000, the Company shall ~~issue~~ either post its irrevocable election on its website or disclose the same in a ~~Current Report~~ current report on Form 8-K (or ~~press release~~ any successor form) that is filed with the Commission. The irrevocable election shall apply to all conversions of Notes on Conversion Dates occurring subsequent to delivery of such notice; provided, however, that no such election will affect any Settlement Method theretofore elected (or ~~otherwise provide public disclosure in a manner compliant~~ deemed to be elected) with ~~Regulation FD announcing that the Company has made such irrevocable election~~respect to any Note. For the avoidance of doubt, such an irrevocable election, if made, ~~will~~ shall be effective without the need to amend this ~~Second Supplemental~~ Indenture or the Notes, including pursuant to Section ~~9.02(i~~10.01(k). However, the Company ~~may, nonetheless,~~ may nonetheless choose to execute such an amendment at its option. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 40 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 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~~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 the amount of cash payable in lieu of delivering fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~11.02(h~~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~~ facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable 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 ~~11.02(h~~14.02(h). The Trustee (~~and~~ and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 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 ~~12.03~~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~~, 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 ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the second Business Day immediately following the last Trading Day of the relevant Observation Period, in the case of any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver ~~(if applicable)~~ to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be ~~entitled, in certificate form or in book-entry format,~~ entitled 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 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 ~~11.04~~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 1114. (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~~, and the Company shall not adjust the Conversion Rate to adjust for any accrued and unpaid interest on 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 excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. . (i) 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 such Interest Payment Date,~~ payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a 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 (34) to the extent of any Defaulted Amounts, if any Defaulted Amounts ~~exist~~ 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~~ converted, redeemed and/or repurchased, as applicable, following such Regular Record Date. (ij) The Person in whose name the certificate for any shares of Common ~~Shares shall be issuable~~ Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional Common Shares upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Common Shares issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of Common Shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional Common Shares remaining after such computation shall be paid in cash.sur

Appears in 1 contract

Sources: Indenture (Cutera Inc)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~14.02, Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), upon conversion of any Note, the Company shall ~~pay~~ satisfy its Conversion Obligation by paying or ~~deliver~~delivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~14.02. (i) All conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Notice of Redemption with respect to the Notes and prior to the related Redemption Date, and all conversions for which the relevant Conversion Date occurs on or after ~~September 1~~, ~~2025~~ 2024, shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Notice of Redemption with respect to the Notes but prior to the related Redemption Date, and any conversions for which the relevant Conversion Date occurs on or after ~~September 1~~, ~~2025~~2024, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion Date (or any conversions for which the ~~period described in~~ relevant Conversion Date occurs after the ~~third immediately succeeding set~~ Company’s issuance of ~~parentheses~~a Notice of Redemption with respect to the Notes and prior to the related Redemption Date, as or for which the ~~case may be~~relevant Conversion Date occurs on or after , 2024), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the 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 for which the relevant Conversion Date occurs (x) after the date of issuance of a Notice of Redemption with respect to the Notes and prior to the related Redemption Date, in such Notice of Redemption or (y) on or after ~~September 1~~, ~~2025~~2024, no later than ~~September 1~~the close of business on the Scheduled Trading Day immediately preceding , ~~2025~~2024). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to any conversion on such Conversion Date or during such period, and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. 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 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)~~all Holders, the Company may, prior to ~~September 1~~, ~~2025~~2024, 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 need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its option. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 40 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 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~~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 the amount of cash payable in lieu of delivering fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~11.02(h~~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~~ 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 ~~11.02(h~~14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 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 ~~12.03~~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~~, 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 ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical ~~Settlement~~Settlement (provided that, with respect to any Conversion Date following the Regular Record Date immediately preceding the Maturity Date where Physical Settlement applies to the related conversion, the Company shall settle any such conversion on the Maturity Date), or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to a converting ~~Holders~~Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be entitled, in ~~certificate form or in~~ book-entry ~~format~~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 (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 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 ~~11.04~~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 1114. (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, and the Company shall not adjust the Conversion Rate to adjust for any accrued and unpaid interest on the Notes~~in this Section 14.02(h). The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but ~~excluding~~not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (34) to the extent of any Defaulted Amounts, if any Defaulted Amounts exist at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the shares of Common ~~Shares~~ Stock shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common ~~Shares~~ Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of ~~Common Shares~~ shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional ~~Common Shares~~ shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Sources: Indenture (Veoneer, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~14.02, Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), upon conversion of any Note, the Company shall ~~pay~~ satisfy its Conversion Obligation by paying or ~~deliver~~delivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~14.02. (i) All conversions of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period, and all conversions for which the relevant Conversion Date occurs on or after ~~September 1~~June 15, ~~2025~~ 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 the related Redemption Period, and any conversions for which the relevant Conversion Date occurs on or after ~~September 1~~June 15, ~~2025~~2030, 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 conversions of Called Notes for which the ~~period~~ relevant Conversion Date occurs during the related Redemption Period, or any conversions for which the relevant Conversion Date occurs on or after June 15, 2030 or for which the Company has irrevocably elected Physical Settlement pursuant to Section 14.01(b)(ii) in a notice as described in ~~the third immediately succeeding set of parentheses, as the case may be~~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, through the Trustee,~~ 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 ~~second~~ Trading Day immediately following the relevant Conversion Date (or, in the case of (A) any conversions of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period, in the related Notice of Redemption, (B) any conversions of Notes for which the relevant Conversion Date occurs on or after ~~September 1~~June 15, ~~2025~~2030, no later than ~~September 1~~June 15, ~~2025~~2030 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). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect ~~Cash~~ a Settlement Method with respect to any conversion on such Conversion Date or ~~Physical Settlement~~ during such period, and the Company shall be deemed to have elected ~~Combination~~ the Default Settlement in Method with respect ~~of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal~~ to ~~$1,000~~such conversion. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount 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 timely elect a Settlement Method or specify as applicable a Specified Dollar Amount shall not constitute a Default under this Indenture. By notice to ~~Holders of the Notes~~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 ~~September 1~~June 15, ~~2025~~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 a 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 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 $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. ~~Not later than three Business Days after~~ 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 ~~an irrevocable election with respect to the Settlement Method as described in the immediately preceding sentence~~such change or election, the Company shall ~~issue~~ either post the Default Settlement Method or fixed Settlement Method, as the case may be, on its website or disclose the same in a ~~Current Report~~ current report on Form 8-K (or ~~press release or otherwise provide public disclosure in a manner compliant~~ any successor form) that is filed 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 need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its optionCommission. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 40 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 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~~Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or (if applicable), the Daily Conversion ~~Values, as the case may be,~~ Values (if applicable) and the amount of cash payable in lieu of delivering any fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~11.02(h~~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~~ facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable 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 ~~11.02(h~~14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 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 ~~12.03~~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~~, 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 ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical ~~Settlement~~Settlement (provided that, with respect to any Conversion Date following the Regular Record Date immediately preceding the Maturity Date where Physical Settlement applies to the related conversion, the Company shall settle any such conversion on the Maturity Date), or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to a converting ~~Holders~~Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be entitled, in ~~certificate~~ certificated form or in book-entry ~~format~~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 (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 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 ~~11.04~~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 1114. (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~~, and the Company shall not adjust the Conversion Rate to adjust for any accrued and unpaid interest on 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 ~~excluding~~not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of 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 such Interest Payment Date,~~ payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a 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 (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts exist at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the Common Shares shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects (or is deemed to have elected) to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional Common Shares upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Common Shares issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of Common Shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional Common Shares remaining after such computation shall be paid in cash.provided

Appears in 1 contract

Sources: Indenture (Enovix Corp)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~14.02, Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), upon conversion of any Note, 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, cash (“Cash Settlement”), shares of Class A Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Class A Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Physical Settlement”) or a combination of cash and shares of Class A Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Class A Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~14.02. (i) All conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Notice of Redemption with respect to the Notes and prior to the related Redemption Date, and all conversions for which the relevant Conversion Date occurs on or after September 1, ~~2025~~ 2029, shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Notice of Redemption with respect to the Notes but prior to the related Redemption Date, and any conversions for which the relevant Conversion Date occurs on or after September 1, ~~2025~~2029, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion Date (or the period described in the third immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the 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 for which the relevant Conversion Date occurs (x) after the date of issuance of a Notice of Redemption with respect to the Notes and prior to the related Redemption Date, in such Notice of Redemption or (y) on or after September 1, ~~2025~~2029, no later than September 1, ~~2025~~2029). If the Company does not elect a Settlement Method ~~prior to~~ by the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect ~~Cash~~ a Settlement ~~or Physical Settlement~~ Method and the Company shall be deemed to have elected ~~Combination~~ the Default Settlement in Method with respect ~~of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal~~ to ~~$1,000~~such conversion. ~~Such~~ Any Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company ~~delivers a Settlement Notice electing~~ timely elects Combination Settlement in with respect ~~of its Conversion Obligation~~ to a conversion but does not ~~indicate a~~ timely notify the converting Holder of the applicable Specified Dollar Amount, then the Specified Dollar Amount for such conversion will be deemed to be $1,000 per $1,000 principal amount of ~~Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000~~Notes. ~~By notice to Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee), the~~ The Company may, by notice to the Holders prior to September 1, ~~2025, at its option~~2029, irrevocably ~~elect~~ fix the Settlement Method, to ~~satisfy its Conversion Obligation with respect~~ any Settlement Method that the Company is then permitted to ~~the~~ elect, that will apply to all conversions of 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~~ Date that is on or after the date the Company sends such notice. ~~Not later than three Business Days after~~ Concurrently with providing notice to ~~Holders,~~ all Holders of a change in the ~~Trustee and the Conversion Agent (if other than the Trustee) of~~ Default Settlement Method or an ~~irrevocable~~ election ~~with respect~~ to irrevocably fix the Settlement ~~Method as described in the immediately preceding sentence~~Method, the Company shall promptly issue a ~~Current Report~~ 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 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~~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, ~~will~~ shall be effective without the need to amend this ~~Second Supplemental~~ Indenture or the Notes, including pursuant to the provisions described in Section ~~9.02(i~~10.01(g). However, the Company ~~may, nonetheless,~~ may nonetheless choose to execute such an amendment at ~~its~~ the Company’s option. (iv) The cash, shares of Class A Common ~~Shares~~ Stock or combination of cash and shares of Class A Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Class A Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 40 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, 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 50 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~~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 the amount of cash payable in lieu of delivering fractional shares of Class A Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~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 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 ~~11.02(h~~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 thereof) (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 ~~11.02(h~~14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be ~~surrendered~~ 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 ~~12.03~~15.03. If a Holder submits its Notes for required repurchase, the Holder’s right to withdraw the Fundamental Change Repurchase Notice and convert the Notes that are subject to repurchase will terminate at the close of business on the Business Day immediately preceding the relevant Fundamental Change Repurchase Date. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered~~, 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 ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the second Business Day immediately following the last Trading Day of the relevant Observation Period, in the case of any other Settlement Method. If any shares of Class A Common ~~Shares~~ Stock are due to a converting ~~Holders~~Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of shares of Class A Common ~~Shares~~ Stock to which such Holder shall be entitled, in certificate form or in book-entry format, 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 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 ~~11.04~~14.04, no adjustment shall be made for dividends on any shares of Class A Common ~~Shares~~ Stock issued upon the conversion of any Note as provided in this Article 1114. (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~~, and the Company shall not adjust the Conversion Rate to adjust for any accrued and unpaid interest on 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 ~~excluding~~not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Class A Common ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (34) to the extent of any Defaulted Amounts, if any Defaulted Amounts ~~exist~~ exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the shares of Class A Common ~~Shares~~ Stock shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Class A Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Class A Common ~~Shares~~ Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for ~~conversion,~~ conversion if the Company has elected Combination Settlement, the full number of ~~Common Shares~~ shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional ~~Common Shares~~ 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) Subject to this Section ~~11.02~~14.02, Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), upon conversion of any Note, 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, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~14.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~September~~ July 1, ~~2025~~ 2020, and all conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date, shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption 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 ~~September~~ July 1, ~~2025~~2020, the Company shall use the same Settlement Method for all conversions ~~with~~ occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion Date (or one of the ~~period~~ periods described in the third immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the Trustee, shall deliver such Settlement Notice to converting ~~Holders~~ Holders, no later than the close of business on the ~~second~~ Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs (x) 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 or (y) on or after ~~September~~ July 1, ~~2025~~2020, no later than ~~September~~ the close of business on the Business Day immediately preceding July 1, ~~2025~~2020). If the Company does not elect a Settlement Method for a particular Conversion Date or Conversion Dates prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to such Conversion Date or Conversion Dates and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. 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 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 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 need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its option. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 40 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, 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 50 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~~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 the amount of cash payable in lieu of delivering fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~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 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 ~~11.02(h~~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 thereof) (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 ~~11.02(h~~14.02(h). The ~~Trustee (and if different, the~~ Conversion ~~Agent)~~ Agent shall notify the Company of any conversion pursuant to this Article 11 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered 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 ~~12.03~~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~~, 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 ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the ~~second~~ third Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the ~~second~~ third Business Day immediately following the last Trading Day of the relevant Observation Period, in the case of any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver ~~(if applicable)~~ to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be ~~entitled, in certificate form or in book-entry format,~~ entitled 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~~ Trustee, upon Company Order, 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 Trustee or ~~Trustee~~the Note Registrar, 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~~conversion and any reasonable expense (including reasonable attorneys’ fees), 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 ~~11.04~~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 1114. (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~~, and the Company shall not adjust the Conversion Rate to adjust for any accrued and unpaid interest on 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 ~~excluding~~not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the 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 (34) to the extent of any ~~Defaulted Amounts~~overdue interest, if any ~~Defaulted Amounts~~ overdue interest 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 or any Fundamental Change Repurchase Date or Redemption Date as described in the immediately preceding sentence shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the shares of Common ~~Shares~~ Stock shall be ~~issuable~~ issued upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common ~~Shares~~ Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of ~~Common Shares~~ shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional ~~Common Shares~~ shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Sources: Indenture (Pandora Media, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to the other provisions of this Section ~~11.02,~~ 12.02 and to Section ~~11.03(b~~12.03(b) and Section ~~11.07(a~~12.07(a), upon conversion of any Note, 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, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of ~~delivering~~ any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 12.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of ~~delivering~~ any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 12.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~12.02. In addition, in respect of conversions pursuant to Section 12.01(b)(iii), the Company shall pay to the converting Holder accrued and unpaid interest to, but not including, the Conversion Date (unless the Conversion Date falls after a Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record Date relates, in which case the Company shall instead pay the full amount of accrued and unpaid interest to the Holder of record on such Regular Record Date and the Conversion Obligation shall not include accrued and unpaid interest to, but not including, the Conversion Date). (i) All conversions ~~for which the relevant Conversion Date occurs~~ occurring on or after ~~September~~ November 1, ~~2025~~ 2017 and all conversions occurring after the Company’s issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date shall be settled using the same Settlement Method. (ii) ~~Except~~ Prior to November 1, 2017, except for any conversions ~~for which~~ that occur after the ~~relevant Conversion Date occurs on or after September 1, 2025~~Company’s issuance of a Redemption Notice with respect to the Notes but prior to the related Redemption Date, the Company shall use the same Settlement Method for all conversions ~~with~~ occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions ~~with~~ that occur on different ~~Conversion Dates~~Trading Days. (iii) If, in respect of any Conversion Date (or the period ~~described in~~ beginning on, and including, November 1, 2017 and ending on, and including, the ~~third~~ second Scheduled Trading Day immediately ~~succeeding set of parentheses~~preceding the Maturity Date, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the 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 ~~for which~~ occurring (x) after the ~~relevant Conversion Date occurs~~ date of issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date, in such Redemption Notice or (y) on or after ~~September~~ November 1, ~~2025~~2017, no later than ~~September~~ November 1, ~~2025~~2017). Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount. If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. 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 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~~ 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 need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its option. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate (and cash in ~~effect on the Conversion Date~~lieu of any fractional share of Common Stock); (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 20 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, 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 50 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 ~~Common Share~~share, 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 the amount of cash payable in lieu of ~~delivering~~ fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent ~~(if other than the Trustee)~~ shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~12.02(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 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 ~~11.02(h~~12.02(h) and (ii) in the case of a Physical Note (1) ~~complete,~~ complete and manually sign ~~and deliver an~~ the irrevocable notice ~~to the Conversion Agent as~~ set forth in on the ~~Form~~ back of ~~Notice of Conversion (or a facsimile thereof)~~ the Note (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~~a facsimile thereof), (2) ~~surrender such Notes, duly endorsed~~ deliver the Notice of Conversion and the Note to the ~~Company or in blank (and accompanied by appropriate endorsement and transfer documents),~~ Conversion Agent 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 ~~11.02(h~~12.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 12 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered 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 ~~12.03~~13.02. The conversion of a beneficial interest in a Global Note shall be effected through the Depositary (but not the Trustee or the Custodian) in accordance with this Indenture and the procedures of the Depositary therefor. Before the holder of a beneficial interest in a Global Note shall be entitled to convert, all or a portion of such holder’s beneficial interest, such holder shall (i) comply with the procedures of the Depositary and if required, pay funds equal to interest payable on the next Interest Payment Date as set forth in Section 12.02(h). 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 11.03(b) and Section 11.07(a), the~~ The Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion ~~Obligation~~ Obligation, including any accrued and unpaid interest in respect of conversions pursuant to Section 12.01(b)(iii) on the ~~second~~ third Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the ~~second~~ third Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver ~~(if applicable)~~ to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be ~~entitled, in certificate form or in book-entry format,~~ entitled 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 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 ~~11.04~~12.04, no adjustment shall be made for dividends on any ~~Common Shares~~ shares issued upon the conversion of any Note as provided in this Article 1113. (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,~~ below and ~~the Company shall~~ as set forth in Section 12.02(a). In any case in which a Holder does not ~~adjust the Conversion Rate to adjust~~ receive a separate cash payment for ~~any~~ accrued and unpaid interest on upon conversion of its Notes, 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 ~~excluding~~not including, the ~~relevant~~ Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~not including, the ~~relevant~~ Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the corresponding Interest Payment Date; (3) for conversions pursuant to Section 12.01(b)(iii); (4) 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 (35) to the extent of any ~~Defaulted Amounts~~overdue interest, if any ~~Defaulted Amounts exist~~ overdue interest exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the certificate for any shares of Common ~~Shares shall be issuable~~ Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of ~~delivering~~ any fractional share of Common ~~Shares~~ Stock issuable upon conversion based on the Daily VWAP ~~for~~ on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP ~~for~~ on the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of ~~Common Shares~~ shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the ~~relevant~~ applicable Observation Period and any fractional ~~Common Shares~~ shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Sources: Indenture (Savient Pharmaceuticals Inc)

Appears in 1 contract

Sources: Indenture (Livongo Health, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~14.02, Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), upon conversion of any Note, the Company shall ~~pay~~ satisfy its Conversion Obligation by paying or ~~deliver~~delivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~14.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~September 1~~March 15, ~~2025~~ 2029 or 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 ~~September 1~~March 15, ~~2025~~2029, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion Date (or any conversions for which the ~~period described in~~ relevant Conversion Date occurs after the ~~third immediately succeeding set~~ Company’s issuance of ~~parentheses~~a Notice of Redemption with respect to the Notes and prior to the related Redemption Date, as or for which the ~~case may be~~relevant Conversion Date occurs on or after March 15, 2029), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the ~~Company, through the Trustee,~~ 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 ~~second~~ Trading Day immediately following the relevant Conversion Date (or, in the case of any ~~conversions~~ conversion for which the relevant Conversion Date occurs (x) during a Redemption Period in the related Notice of Redemption or (y) on or after ~~September 1~~March 15, ~~2025~~2029, no later than ~~September 1~~the close of business on the Business Day immediately preceding March 15, ~~2025~~2029). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall ~~no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall~~ be deemed to have elected ~~Combination~~ the Default Settlement Method in respect of its Conversion ~~Obligation,~~ Obligation and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. 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 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 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,~~ the Company’s failure to timely elect a Settlement Method or specify the applicable Specified Dollar Amount will ~~be effective without the need to amend~~ not constitute a Default or Event of Default under this ~~Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its option~~Indenture. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 40 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 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~~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 the amount of cash payable in lieu of delivering fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to the interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~11.02(h~~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~~ 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 the interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~11.02(h~~14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 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 ~~12.03~~15.03. 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~~, 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 ~~11.03(b~~14.03(b) and Section ~~11.07(a~~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 to satisfy its Conversion Obligation through Physical ~~Settlement~~Settlement (provided that, with respect to any Conversion Date following the Regular Record Date immediately preceding the Maturity Date where Physical Settlement applies to the related conversion, the Company 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, in the case of any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to a converting ~~Holders~~Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to the ~~Conversion Agent or to such~~ converting Holder, or such Holder’s nominee or nominees, the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be entitled, in ~~certificate form or in~~ book-entry ~~format~~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 (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 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 ~~11.04~~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 1114. (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, and the Company shall not adjust the Conversion Rate ~~to adjust~~ for any accrued and unpaid interest on 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 excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment ~~Date~~ Date, however, must be accompanied by funds equal to the amount of interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so ~~converted~~converted on the corresponding Interest Payment Date (regardless of whether such converting Holder was the Holder of record on such Regular Record Date); 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 Trading Day immediately succeeding 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 (34) to the extent of any Defaulted Amounts, if any Defaulted Amounts ~~exist~~ 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, 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 and retain 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 the shares of Common ~~Shares~~ Stock shall be issuable upon conversion shall be treated as a the stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common ~~Shares~~ Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (or, if such Conversion Date is not a Trading Day, the immediately preceding Trading Day), in the case of Physical Settlement) , or based on the Daily VWAP for the last Trading Day of the relevant Observation ~~Period (~~Period, in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of ~~Common Shares~~ shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional ~~Common Shares~~ shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Sources: Indenture (Varonis Systems Inc)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~14.02, Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), upon conversion of any Note, the Company shall ~~pay~~ satisfy its Conversion Obligation by paying or ~~deliver~~delivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~14.02. (i) All conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Notice of Redemption with respect to the Notes and prior to the related Redemption Date, and all conversions for which the relevant Conversion Date occurs on or after ~~September 1~~June 15, ~~2025~~ 2025, shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Notice of Redemption with respect to the Notes but prior to the related Redemption Date, and any conversions for which the relevant Conversion Date occurs on or after ~~September 1~~June 15, 2025, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion Date (or any conversions for which the ~~period described in~~ relevant Conversion Date occurs after the ~~third immediately succeeding set~~ Company’s issuance of ~~parentheses~~a Notice of Redemption with respect to the Notes and prior to the related Redemption Date, as or for which the ~~case may be~~relevant Conversion Date occurs on or after June 15, 2025), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the 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 for which the relevant Conversion Date occurs (x) after the date of issuance of a Notice of Redemption with respect to the Notes and prior to the related Redemption Date, in such Notice of Redemption or (y) on or after ~~September 1~~June 15, 2025, no later than ~~September 1~~June 15, 2025). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to any conversion on such Conversion Date or during such period, and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. 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 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)~~all Holders, the Company may, prior to ~~September 1~~June 15, 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 need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its option. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 30 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 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~~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 the amount of cash payable in lieu of delivering fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~11.02(h~~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~~ 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 ~~11.02(h~~14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 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 ~~12.03~~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~~, 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 ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical ~~Settlement~~Settlement (provided that, with respect to any Conversion Date following the Regular Record Date immediately preceding the Maturity Date where Physical Settlement applies to the related conversion, the Company shall settle any such conversion on the Maturity Date), or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to a converting ~~Holders~~Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be entitled, in ~~certificate form or in~~ book-entry ~~format~~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 (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 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 ~~11.04~~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 1114. (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~~, and the Company shall not adjust the Conversion Rate to adjust for any accrued and unpaid interest on 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 ~~excluding~~not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (34) to the extent of any Defaulted Amounts, if any Defaulted Amounts ~~exist~~ exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the shares of Common ~~Shares~~ Stock shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common ~~Shares~~ Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of ~~Common Shares~~ shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional ~~Common Shares~~ shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Sources: Indenture (Splunk Inc)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~14.02, Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~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 ~~pay~~ satisfy its Conversion Obligation by paying or ~~deliver~~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”), Common Shares~~Settlement Amount” equal to the sum of the Daily Settlement Amounts for each of the 60 consecutive Trading Days during the relevant Observation Period for such Note, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section 11.02 (“Physical Settlement”) or a combination of cash and Common Shares, together with cash, if applicable, in lieu of delivering any fractional Common Shares in accordance with subsection (j) of this Section 11.02 (“Combination Settlement”), at its election, as set forth in this Section 11.0214.02. (i) All conversions of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period, and all conversions for which the relevant Conversion Date occurs on or after ~~September 1~~June 15, ~~2025~~ 2028, shall be settled using the same ~~Settlement Method~~forms and amounts of consideration. (ii) Except for any conversions of Called Notes for which the relevant Conversion Date occurs during a related Redemption Period, and any conversions for which the relevant Conversion Date occurs on or after ~~September 1~~June 15, ~~2025~~2028, 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 conversions of Called Notes for which the ~~period described in~~ relevant Conversion Date occurs during the ~~third immediately succeeding set of parentheses~~related Redemption Period or any conversions for which the relevant Conversion Date occurs on or after June 15, ~~as the case may be~~2028), the Company elects to settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cash, the Company will deliver a notice (the “~~Settlement~~ Cash Percentage Notice”) of ~~the relevant Settlement Method~~ such election in respect of such Conversion Date (or such period, as the case may be)) to converting Holders, the ~~Company, through~~ 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 ~~second~~ Trading Day immediately following the relevant Conversion Date (or, in the case of (x) any conversions of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period, in the related Notice of Redemption or (y) any conversions of Notes for which the relevant Conversion Date occurs on or after ~~September 1~~June 15, ~~2025~~2028, no later than ~~September 1~~June 15, ~~2025~~2028) (in each case, the “Cash Percentage Election Deadline”), and the Company shall indicate in such Cash Percentage Notice the percentage of the Conversion Obligation 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~~ timely notify Holders of such an election of a ~~Settlement Method~~ Cash Percentage at or prior to the ~~deadline set forth in the immediately preceding sentence~~applicable Cash Percentage Election Deadline, the Company shall no longer have the right to elect a Cash ~~Settlement~~ Percentage with respect to any conversion on such Conversion Date or ~~Physical Settlement~~ during such period, and the Company shall be deemed to have elected ~~Combination Settlement in respect~~ a Cash Percentage of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount 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 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 0% 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 need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its optionconversion. (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: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement~~Amounts, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of Common Shares equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Net Settlement Amounts ~~for each of the 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, 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~~Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) 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 shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~11.02(h~~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~~ facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable 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 ~~11.02(h~~14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 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 ~~12.03~~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~~, 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 11.03(b) and Section 11.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to a converting ~~Holders~~Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be entitled, in ~~certificate form or in~~ book-entry ~~format~~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 (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 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 ~~11.04~~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 1114. (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~~, and the Company shall not adjust the Conversion Rate to adjust for any accrued and unpaid interest on 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 ~~excluding~~not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~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~~Notes, 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 such Interest Payment Date,~~ payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the close of business on the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption 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 (34) to the extent of any Defaulted Amounts, if any Defaulted Amounts ~~exist~~ exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name ~~the~~ any shares of Common ~~Shares~~ Stock shall be issuable upon conversion shall be treated as a stockholder of record of such shares of Common Stock as of the close of business on the ~~relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the~~ last Trading Day of the relevant Observation ~~Period (if the Company elects (or is deemed to have elected) to satisfy the related Conversion Obligation by Combination Settlement), as the case may be~~Period. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common ~~Shares~~ Stock issuable upon conversion ~~based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or~~ based on the Daily VWAP for the last Trading Day of the relevant Observation ~~Period (in the case of Combination Settlement)~~Period. For each Note surrendered for conversion, if the Company has elected ~~Combination Settlement~~(or is deemed to have elected) a Cash Percentage less than 100% or does not deliver a Cash Percentage Notice at or prior to the applicable Cash Percentage Election Deadline, the full number of ~~Common Shares~~ shares, if any, that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional ~~Common Shares~~ shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Sources: Indenture (PagerDuty, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~14.02, Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), upon conversion of any Note, the Company ~~shall~~ shall, at its election, pay or deliver, as the case may be, to the converting Holder, in ~~respect~~ full satisfaction of ~~each $1,000 principal amount of Notes being converted~~its Conversion Obligation, cash (“Cash Settlement”), shares of the Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with ~~subsection (j~~Section 14.02(i) ~~of this Section 11.02~~ (“Physical Settlement”) ), or a combination of cash and shares of the Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with ~~subsection (j~~Section 14.02(i) ~~of this Section 11.02~~ (“Combination Settlement”), ~~at its election,~~ as set forth in this Section ~~11.02~~14.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~September 1~~August 15, ~~2025~~ 2023 and all conversions occurring after the date the Company issues a Notice of Tax Redemption, and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Tax 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 on or after ~~September 1~~August 15, ~~2025~~2023 or after the date of the issuance of a Notice of Tax Redemption and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Tax Redemption Date, the Company shall use the same Settlement Method (including the same relative proportion of cash and/or 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. By notice to Holders of the Notes, the Company may, prior to August 15, 2023, at its option, irrevocably elect a Settlement Method and/or a Specified Dollar Amount (or a minimum Specified Dollar Amount), or eliminate the right to elect a Settlement Method, for all Conversion Dates occurring subsequent to delivery of such notice. (~~iii~~ii) ~~If, in respect of any Conversion Date (or~~ If the ~~period described in the third immediately succeeding set of parentheses, as the case may be)~~Company elects a Settlement Method, the Company ~~elects~~ shall deliver notice to ~~deliver a notice (~~Holders through the ~~“Settlement Notice”)~~ Conversion Agent of ~~the relevant~~ such Settlement Method ~~in respect of such Conversion Date (or such period, as~~ the ~~case may be), the Company, through the Trustee, shall deliver such Settlement Notice to converting Holders~~ Company has selected no later than the close of business on the ~~second~~ Trading Day immediately following the ~~relevant~~ related Conversion Date (~~or,~~ or (A) in the case of any conversions for which the relevant Conversion Date occurs on or after ~~September 1~~August 15, ~~2025~~2023, no later than ~~September 1~~August 15, ~~2025~~2023 or (B) in the case of any conversions occurring after the date of issuance of a Notice of Tax Redemption and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Tax Redemption Date, in such Notice of Tax Redemption). If the Company does not timely elect a Settlement ~~Method prior to the deadline set forth in the immediately preceding sentence~~Method, the Company shall no longer have the right to elect ~~Cash~~ Combination Settlement or Physical Settlement with respect to that Conversion Date and the Company shall be deemed to have elected ~~Combination~~ Cash Settlement in respect of its Conversion Obligation~~, and~~ . If the ~~Specified Dollar Amount per $1,000 principal amount~~ Company has timely elected Combination Settlement in respect of ~~Notes shall be equal to $1,000. Such Settlement Notice shall specify~~ any conversion but does not timely notify the ~~relevant Settlement Method and in the case~~ Conversion Agent 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 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 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 need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such 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: (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 number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate ~~in effect~~ on the Conversion ~~Date~~Date (plus cash in lieu of any fractional share of Common Stock issuable upon conversion); (B) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 20 consecutive VWAP Trading Days during the related Observation Period; and (C) if the Company elects ~~(or is deemed to have elected)~~ to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being ~~converted,~~ converted a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 20 consecutive VWAP Trading Days during the related Observation ~~Period~~Period (plus cash in lieu of any fractional share of Common Stock issuable upon conversion). 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 so surrendered. (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~~ 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~~ and, if applicable, the amount of cash payable in lieu of ~~delivering~~ any fractional share of Common ~~Share~~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~~ and, if applicable, the amount of cash payable in lieu of ~~delivering~~ fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (bi) ~~Subject to Section 11.02(e~~To convert a beneficial interest in a Global Note (which conversion is irrevocable), ~~before any Holder~~ the holder of ~~a Note shall be entitled to convert a Note as set forth above,~~ such ~~Holder shall~~ beneficial interest must: (iA) ~~in the case of a Global Note,~~ comply with the ~~procedures of the Depositary in effect at that time and,~~ 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 ~~11.02(h) and~~ 14.02(g); and (ii) in To convert a Certificated Note, the ~~case of a Physical Note~~ Holder must: (1A) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile thereof) (a “Notice of Conversion”) ~~at the office of the Conversion Agent~~ and ~~state in writing therein the principal amount of Notes~~ such Note 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, ; (3B) if required, furnish appropriate endorsements and transfer ~~documents and~~ documents; (4C) 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 ~~11.02(h~~14.02(g). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 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. ~~No Notice of Conversion with respect to any Notes may be surrendered by~~ If a Holder ~~thereof if such Holder~~ has ~~also~~ already delivered a Fundamental Change Repurchase Notice with respect to ~~the Company in respect of~~ a Note, such ~~Notes and~~ Holder may not surrender such Note for conversion until such Holder has ~~not~~ validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 12.03. 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~~or, in the case of a Global ~~Notes~~Note, has complied with the Applicable Procedures with respect to such a withdrawal) in accordance with the ~~rules~~ 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 ~~applicable Depositary~~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 (b) above~~Section 14.02(b). ~~Except as set forth in~~ Subject to the next paragraph and the provisions of Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), the Company shall pay or deliver, as the case may be, the ~~consideration~~ Settlement Amount due in respect of the Conversion Obligation on on: (i) the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement~~, or on~~ ; or (ii) the second Business Day immediately following the last VWAP Trading Day of the relevant Observation Period, in if the ~~case of any other~~ Company elects Combination Settlement ~~Method~~or if the Company elects or is deemed to elect Cash Settlement. If any shares of Common ~~Shares~~ Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver ~~(if applicable) to the Conversion Agent or~~ to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary, as the case may be, for the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be ~~entitled, in certificate form or in book-entry format,~~ entitled in satisfaction of the Company’s Conversion Obligation. (d) In case any Certificated Note shall be surrendered for partial conversion, in an Authorized Denomination, 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~~ 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~~conversion of such Note, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common ~~Shares~~ Stock being issued in a name other than the Holder’s name until the 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 11.04, no adjustment shall be made for dividends on any Common Shares issued upon the conversion of any Note as provided in this Article 11. (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 ~~conversion~~conversion of a Note, a the converting Holder shall not receive any separate cash payment ~~for~~ representing accrued and unpaid interest, if any, except as set forth in the paragraph below~~, and the Company shall not adjust the Conversion Rate to adjust for any accrued and unpaid interest on the Notes~~. 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 ~~excluding~~not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~not including, the relevant Conversion Date shall be deemed to be paid in full rather than ~~cancelled~~canceled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common ~~Shares~~Stock, accrued and unpaid interest ~~will~~ shall be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the ~~foregoing~~immediately preceding paragraph, if Notes are converted after the close of business on a Regular Record Date for the payment of interest, 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 such Interest Payment Date,~~ payable on the Notes so ~~converted~~converted on the corresponding Interest Payment Date (regardless of whether the converting Holder was the Holder of record on the corresponding Regular Record Date); provided that no such payment ~~shall~~ need be ~~required~~ made: (1i) if the Notes are surrendered for ~~conversions~~ conversion following the Regular Record Date immediately preceding the Maturity Date; ; (2ii) if the Company has called the Notes for Tax Redemption on a Tax Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (iii) 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 (3iv) to the extent of any ~~Defaulted Amounts~~overdue interest, if any ~~Defaulted Amounts exist~~ 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 Fundamental Change Repurchase Date and any Tax Redemption as described in clauses (ii) and (iii) above shall receive and retain the full interest payment due on the Maturity Date or other applicable Interest Payment Date regardless of whether their Notes have been converted following such Regular Record Date. (ih) The Person in whose name ~~the~~ any shares of Common ~~Shares shall be issuable~~ Stock delivered upon conversion is registered shall ~~be treated as a stockholder~~ become the holder of record of such shares as of the close of business on (i) the relevant Conversion Date (if the Company elects ~~to satisfy the related Conversion Obligation by~~ Physical ~~Settlement~~Settlement or (ii) or the last VWAP Trading Day of the relevant Observation Period (if the Company elects ~~(or is deemed to have elected) to satisfy the related Conversion Obligation by~~ Combination Settlement~~), as the case may be~~. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion; provided that (a) the converting Holder shall have the right to receive the Settlement Amount due upon conversion and (b) in the case of a conversion between a Regular Record Date and the corresponding Interest Payment Date, the Holder of record as of the close of business on such Regular Record Date shall have the right to receive the interest payable on such Interest Payment Date, in accordance with Section 14.02(g). (ji) The Company shall not issue any fractional share of Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of ~~delivering~~ any fractional share of Common ~~Shares~~ Stock issuable upon conversion in an amount based on (i) the Daily VWAP ~~for~~ on the relevant Conversion Date if the Company elects Physical Settlement or (~~in the case of Physical Settlement~~ii) ~~or based on~~ the Daily VWAP ~~for~~ on the last VWAP Trading Day of the relevant Observation Period ~~(in~~ if the ~~case of~~ Company elects Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of ~~Common Shares~~ shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period ~~and~~ and, if applicable, any fractional ~~Common Shares~~ share remaining after such computation shall be paid in cash.

Appears in 1 contract

Sources: Indenture (Royal Caribbean Cruises LTD)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~14.02, Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), upon conversion of any Note, 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, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~14.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~September~~ August 1, ~~2025~~ 2024, 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 the second Scheduled Trading Day immediately preceding the related Redemption Date, shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Notice of Redemption with respect to 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 ~~September~~ August 1, ~~2025~~2024, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion Date (or the period described in the third immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the 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 for which the relevant Conversion Date occurs (x) after the date of issuance of a Notice of Redemption with respect to the Notes and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date, in such Notice of Redemption or (y) on or after ~~September~~ August 1, ~~2025~~2024, no later than ~~September 1~~August 15, ~~2025~~2024). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. 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 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 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 need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its option. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 30 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, 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 50 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~~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 the amount of cash payable in lieu of delivering fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~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 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 ~~11.02(h~~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 thereof) (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 ~~11.02(h~~14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered 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 ~~12.03~~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~~, 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 ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be entitled, in certificate form or in book-entry format, 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 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 ~~11.04~~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 1114. (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~~, and the Company shall not adjust the Conversion Rate to adjust for any accrued and unpaid interest on 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 ~~excluding~~not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so converted; provided that no such payment shall be required (1) for conversions ~~following~~ after the close of business on the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a 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 Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading Day immediately following the corresponding Interest Payment Date; or (34) to the extent of any Defaulted Amounts, if any Defaulted Amounts ~~exist~~ exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all applicable Holders of record at the close of business on the Regular Record Date immediately preceding the Maturity Date or any Redemption Date shall receive the full interest payment due on the Maturity Date or any Redemption Date, as the case may be, regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name ~~the~~ any shares of Common ~~Shares~~ Stock shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common ~~Shares~~ Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of ~~Common Shares~~ shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional ~~Common Shares~~ shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Sources: Indenture (Wayfair Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this ~~Section 11.02~~‎Section 14.02, ~~Section 11.03(b)~~ ‎Section 14.03(b), and ~~Section 11.07(a~~‎Section 14.07(a), upon conversion of any Note, the Company shall ~~pay~~ satisfy its Conversion Obligation by paying or ~~deliver~~delivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j‎(j) of this ~~Section 11.02~~ ‎Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j‎(j) of this ~~Section 11.02~~ ‎Section 14.02 (“Combination Settlement”), at its election, as set forth in this ~~Section 11.02~~‎Section 14.02. (i) All conversions ~~for which the relevant Conversion Date occurs~~ occurring (x) on or after ~~September 1~~March 15, ~~2025~~ 2030, (y) during a Redemption Period or (z) during the period after delivery to the Holders of a Certain Distributions Notification until the related Certain Distributions Conversion Period End Date shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs (x) on or after ~~September 1~~March 15, ~~2025~~2030, (y) during a Redemption Period or (z) during the period after delivery to the Holders of a Certain Distributions Notification until the related Certain Distributions Conversion Period End Date, the Company shall use the same Settlement Method for all conversions ~~with~~ occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions ~~with~~ that occur on different Conversion Dates. (iii) (A) If, in respect of any Conversion Date (or one of the ~~period~~ periods described in the ~~third~~ fourth immediately succeeding set of parentheses, as 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, through~~ 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 ~~second~~ Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions ~~for which~~ occurring (x) during a Redemption Period, in such Redemption Notice, (y) during the ~~relevant~~ period after delivery to the Holders of a Certain Distributions Notification until the related Certain Distributions Conversion Period End Date ~~occurs~~ in such Certain Distributions Notification or (z) on or after ~~September 1~~March 15, ~~2025~~2030, no later than ~~September 1~~the close of business on the Business Day immediately preceding March 15, ~~2025~~2030) (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~~Settlement Method Election Deadline, ~~the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and~~ then the Company shall be deemed to have elected ~~Combination~~ the Default Settlement in Method with respect ~~of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal~~ to ~~$1,000~~such Conversion. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount 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 then the Specified Dollar Amount for such conversion will be deemed to be $1,000 per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. By notice to 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 need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such 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: (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 number of Common Shares equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, 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 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, 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 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 11.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the 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 11.02(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 thereof) (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 11.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered 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 12.03. 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 11.03(b) and Section 11.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any Common Shares are due to converting Holders, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of Common Shares to which such Holder shall be entitled, in certificate form or in book-entry format, in satisfaction of the Company’s ~~Conversion Obligation~~failure to timely elect a Settlement Method or specify the applicable Specified Dollar Amount will not constitute a default under this Indenture. (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 11.04, no adjustment shall be made for dividends on any Common Shares issued upon the conversion of any Note as provided in this Article 11. (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, and the Company shall not adjust the Conversion Rate to adjust for any accrued and unpaid interest on 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 excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and 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 such Interest Payment Date, on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a 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 (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts exist at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the Common Shares shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects (or is deemed to have elected) to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional Common Shares upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Common Shares issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of Common Shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional Common Shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Sources: Indenture (Esperion Therapeutics, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~14.02, Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), upon conversion of any Note, the Company shall ~~pay~~ satisfy its Conversion Obligation by paying or ~~deliver~~delivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~14.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~September~~ March 1, ~~2025~~ 2028, shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs on or after ~~September~~ March 1, ~~2025~~2028, 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 conversions for which the ~~period~~ relevant Conversion Date occurs on or after March 1, 2028 or for which the Company has irrevocably elected Physical Settlement pursuant to Section 14.01(b)(ii) in a notice as described in ~~the third immediately succeeding set of parentheses, as the case may be~~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, 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 ~~second~~ Trading Day immediately following the relevant Conversion Date (or, in the case of (A) any conversions of Notes for which the relevant Conversion Date occurs on or after ~~September~~ March 1, ~~2025~~2028, no later than ~~September~~ March 1, ~~2025~~2028 or (B) 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). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect ~~Cash~~ a Settlement Method with respect to any conversion on such Conversion Date or ~~Physical Settlement~~ during such period, and the Company shall be deemed to have elected ~~Combination~~ the Default Settlement in Method with respect ~~of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal~~ to ~~$1,000~~such conversion. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount 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 timely elect a Settlement Method or specify as applicable a Specified Dollar Amount shall not constitute a Default under this Indenture. By written notice to ~~Holders of the Notes~~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 ~~September~~ March 1, ~~2025~~2028. By written notice to all Holders, the Company may, prior to March 1, 2028, at its option, irrevocably eliminate any (but not every) Settlement Method or irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through a 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 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 $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 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~~. Not later than three Business Days after providing notice~~ ; provided, however, that no such change or election will affect any Settlement Method theretofore elected (or deemed to ~~Holders, the Trustee and the Conversion Agent (if other than the Trustee~~be elected) ~~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 electionany Note. For the avoidance of doubt, such an irrevocable election, if ~~made~~made by the Company, will be effective without the need to amend this ~~Second Supplemental~~ Indenture or the Notes, including pursuant to Section ~~9.02(i~~10.01(m). However, the Company ~~may, nonetheless,~~ 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 written notice to Holders 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 current report on Form 8-K (or any successor form) that is filed with the Commission. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (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 number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 30 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 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 (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~~Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) in writing of the Daily Settlement Amounts or (if applicable), the Daily Conversion ~~Values, as the case may be,~~ Values (if applicable) and the amount of cash payable in lieu of delivering any fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~11.02(h~~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~~ 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 designated corporate trust 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 designated corporate trust 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 ~~11.02(h~~14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 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 ~~12.03~~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~~, 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 ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical ~~Settlement~~Settlement (provided that, with respect to any Conversion Date following the 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, in the case of any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to a converting ~~Holders~~Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be entitled, in ~~certificate form or in~~ book-entry ~~format~~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 (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 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 ~~11.04~~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 1114. (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~~, and the Company shall not adjust the Conversion Rate to adjust for any accrued and unpaid interest on 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 ~~excluding~~not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common ~~Shares~~Stock, any accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. 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 interest ~~payable,~~ payable on the Notes so converted on such Interest Payment Date~~, on the Notes so converted~~; 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 Fundamental Change Repurchase Date that is after ~~a Regular~~ an Interest Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (3) to the extent of any Defaulted ~~Amounts~~Amounts or Additional Interest, if any Defaulted Amounts ~~exist~~ 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~~ Interest Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the Common Shares shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects (or is deemed to have elected) to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional Common Shares upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Common Shares issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of Common Shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional Common Shares remaining after such computation shall be paid in cash.recei

Appears in 1 contract

Sources: Indenture (Fastly, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~14.02, Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), upon conversion of any Note, the Company shall ~~pay~~ satisfy its Conversion Obligation by paying or ~~deliver~~delivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~14.02. (i) All conversions of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period, and all conversions for which the relevant Conversion Date occurs on or after ~~September~~ March 1, ~~2025~~ 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 the related Redemption Period, and any conversions for which the relevant Conversion Date occurs on or after ~~September~~ March 1, ~~2025~~2030, 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 conversions of Called Notes for which the ~~period~~ relevant Conversion Date occurs during the related Redemption Period, or any conversions for which the relevant Conversion Date occurs on or after March 1, 2030 or for which the Company has irrevocably elected Physical Settlement pursuant to Section 14.01(b)(ii) in a notice as described in ~~the third immediately succeeding set of parentheses, as the case may be~~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, through the Trustee,~~ 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 ~~second~~ Trading Day immediately following the relevant Conversion Date (or, in the case of (A) any conversions of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period, in the related Notice of Redemption, (B) any conversions of Notes for which the relevant Conversion Date occurs on or after ~~September~~ March 1, ~~2025~~2030, no later than ~~September~~ March 1, ~~2025~~2030 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). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect ~~Cash~~ a Settlement Method with respect to any conversion on such Conversion Date or ~~Physical Settlement~~ during such period, and the Company shall be deemed to have elected ~~Combination~~ the Default Settlement in Method with respect ~~of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal~~ to ~~$1,000~~such conversion. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount 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 timely elect a Settlement Method or specify as applicable a Specified Dollar Amount shall not constitute a Default under this Indenture. By notice to ~~Holders of the Notes~~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 ~~September~~ March 1, ~~2025~~2030. By notice to all Holders, the Company may, prior to March 1, 2030, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through a 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 ~~for all Conversion Dates occurring subsequent~~ or with an ability to ~~delivery~~ 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 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 ~~notice. Not later than three Business Days after providing notice to Holders~~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 ~~an irrevocable~~ such Specified Dollar Amount no later than the relevant deadline for election ~~with respect to the~~ of a specified Settlement Method as ~~described~~ set forth in the immediately preceding ~~sentence~~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 ~~issue a Current Report on Form 8-K~~ apply for all conversions of Notes with Conversion Dates occurring subsequent to delivery of such notice; provided, however, that no such change or ~~press release~~ election will affect any Settlement Method theretofore elected (or ~~otherwise provide public disclosure in a manner compliant~~ deemed to be elected) with ~~Regulation FD announcing that the Company has made such irrevocable election~~respect to any Note. For the avoidance of doubt, such an irrevocable election, if ~~made~~made by the Company, will be effective without the need to amend this ~~Second Supplemental~~ Indenture or the Notes, including pursuant to Section ~~9.02(i~~10.01(m). However, the Company ~~may, nonetheless,~~ 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 either post the Default Settlement Method 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 successor form) that is filed with the Commission. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 45 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 45 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or (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~~Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or (if applicable), the Daily Conversion ~~Values, as the case may be,~~ Values (if applicable) and the amount of cash payable in lieu of delivering any fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~11.02(h~~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~~ facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable 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 ~~11.02(h~~14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 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 ~~12.03~~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~~, 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 ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical ~~Settlement~~Settlement (provided that, with respect to any Conversion Date following the Regular Record Date immediately preceding the Maturity Date where Physical Settlement applies to the related conversion, the Company shall settle any such conversion on the Maturity Date), or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to a converting ~~Holders~~Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be entitled, in ~~certificate~~ certificated form or in book-entry ~~format~~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 (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 shares of Common ~~Shares~~ Stock upon ~~conversion~~conversion of the 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 ~~11.04~~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 1114. (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~~, and the Company shall not adjust the Conversion Rate to adjust for any accrued and unpaid interest on 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 ~~excluding~~not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of 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 such Interest Payment Date,~~ payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a 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 (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts exist at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the Common Shares shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects (or is deemed to have elected) to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional Common Shares upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Common Shares issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of Common Shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional Common Shares remaining after such computation shall be paid in cash.conver

Appears in 1 contract

Sources: Indenture (Mirion Technologies, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this ~~Section 11.02~~‎Section 14.02, ~~Section 11.03(b~~‎Section 14.03(b) and ~~Section 11.07(a~~‎Section 14.07(a), upon conversion of any Note, the Company shall ~~pay~~ satisfy its Conversion Obligation by paying or ~~deliver~~delivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j‎(j) of this ~~Section 11.02~~ ‎Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j‎(j) of this ~~Section 11.02~~ ‎Section 14.02 (“Combination Settlement”), at its election, as set forth in this ~~Section 11.02~~‎Section 14.02. (i) All conversions ~~for which the relevant Conversion Date occurs~~ occurring (x) on or after ~~September~~ December 1, ~~2025~~ 2024, (y) during a Redemption Period or (z) during the period after delivery to the Holders of a Certain Distributions Notification until the related Certain Distributions Conversion Period End Date shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs (x) on or after ~~September~~ December 1, ~~2025~~2024, (y) during a Redemption Period or (z) during the period after delivery to the Holders of a Certain Distributions Notification until the related Certain Distributions Conversion Period End Date, the Company shall use the same Settlement Method for all conversions ~~with~~ occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions ~~with~~ that occur on different Conversion Dates. (iii) If, in respect of any Conversion Date (or one of the ~~period~~ periods described in the ~~third~~ fourth immediately succeeding set of parentheses, as 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, through~~ 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 ~~second~~ Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions ~~for which~~ occurring (x) during a Redemption Period, in such Redemption Notice, (y) during the ~~relevant~~ period after delivery to the Holders of a Certain Distributions Notification until the related Certain Distributions Conversion Period End Date ~~occurs~~ in such Certain Distributions Notification or (z) on or after ~~September~~ December 1, ~~2025~~2024, no later than ~~September~~ the close of business on the Business Day immediately preceding December 1, ~~2025~~2024). 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, ~~the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and~~ then the Company shall be deemed to have elected ~~Combination~~ the Default Settlement in Method with respect ~~of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal~~ to ~~$1,000~~such Conversion. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount 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 then the Specified Dollar Amount for such conversion will be deemed to be $1,000 per $1,000 principal amount of Notes in such Settlement Notice. For the avoidance of doubt, the Company’s failure to timely elect a Settlement Method or specify the applicable Specified Dollar Amount ~~per $1,000 principal amount of Notes shall be deemed to be $1,000~~will not constitute a default under this Indenture. By In addition, the Company may, by notice to the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee), irrevocably fix the Settlement Method to any Settlement Method that the Company ~~may, prior~~ is then permitted to ~~September 1, 2025, at its option, irrevocably~~ elect in accordance with this Indenture that will apply to ~~satisfy its Conversion Obligation with respect to the~~ all conversions of 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~~ Date that is on or after the date the Company sends such notice. ~~Not later than three Business Days after~~ Concurrently with providing notice to ~~Holders,~~ all the ~~Trustee and~~ Holders of a change in the ~~Conversion Agent (if other than the Trustee) of~~ Default Settlement Method or an ~~irrevocable~~ election ~~with respect~~ to irrevocably fix the Settlement ~~Method as described in the immediately preceding sentence~~Method, the Company shall promptly issue a ~~Current Report~~ 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 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~~election will affect any Settlement Method theretofore elected (or deemed to be elected) with respect to any Note pursuant to ‎Section 14.02. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this ~~Second Supplemental~~ Indenture or the Notes, including pursuant to Section ~~9.02(i~~10.01(j). However, the Company ~~may, nonetheless,~~ may nonetheless choose to execute such an amendment at its option. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion ~~Date~~Date (plus cash in lieu of any fractional share of Common Stock issuable upon conversion); (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 40 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, 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 50 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~~Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) in writing of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to ~~Section 11.02(e~~‎Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time for converting a beneficial interest in a Global Note and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in ‎Section 14.02(h) and, if required, pay all transfer or similar taxes, if any, as set forth in Section ~~11.02(h~~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 thereof)~~ (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 11.02(h~~‎Section 14.02(h). The Trustee (~~and~~ and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this ~~Article 11~~ ‎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 12.03~~‎Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered~~, 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(b) above. Except as set forth in ~~Section 11.03(b~~‎‎Section 14.03(b) and ~~Section 11.07(a~~‎Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects to satisfy the Conversion Obligation through Physical Settlement, or on the second Business Day immediately following the last Trading Day of the relevant Observation Period, in the case of any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver ~~(if applicable) to the Conversion Agent or~~ to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be ~~entitled, in certificate form or in book-entry format,~~ entitled in satisfaction of the Company’s Conversion Obligation. (d) In ~~case~~ respect of certificated Notes, 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 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 11.04~~‎Section 14.04, no adjustment shall be made for dividends on any shares of Common ~~Shares~~ Stock issued upon the conversion of any Note as provided in this Article 1114. (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,~~ below and the Company shall not adjust the Conversion Rate ~~to adjust~~ for any accrued and unpaid interest on 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 excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes (to, but not including such 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~~ Date, however, must be accompanied by funds equal to the amount of interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so ~~converted~~converted on the corresponding Interest Payment Date (regardless of whether the converting Holder was the Holder of Record on such Regular Record Date); provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a 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 (34) to the extent of any ~~Defaulted Amounts~~overdue interest, if any ~~Defaulted Amounts exist~~ overdue interest exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the certificate for any shares of Common ~~Shares shall be issuable~~ Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common ~~Shares~~ Stock issuable upon conversion based on the Daily VWAP ~~for~~ on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP ~~for~~ on the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of Common Shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional Common Shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Sources: Indenture (Plug Power Inc)

Appears in 1 contract

Sources: Indenture (Livongo Health, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~14.02, Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), upon conversion of any Note, the Company shall ~~pay~~ satisfy its Conversion Obligation by paying or ~~deliver~~delivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~14.02. (i) All conversions of Notes in connection with a Notice of Redemption, and all conversions for which the relevant Conversion Date occurs on or after ~~September 1~~October 15, ~~2025~~ 2035, shall be settled using the same Settlement Method. (ii) Except for any conversions of Notes in connection with a Notice of Redemption, and any conversions for which the relevant Conversion Date occurs on or after ~~September 1~~October 15, ~~2025~~2035, 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 conversions of Notes in connection with a Notice of Redemption, any conversions for which the ~~period~~ relevant Conversion Date occurs on or after October 15, 2035 or for which the Company has irrevocably elected Physical Settlement pursuant to ‎Section 14.01(b)(ii) in a notice as described in ~~the third immediately succeeding set of parentheses, as the case may be~~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, through the Trustee,~~ 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 ~~second~~ 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 on or after ~~September 1~~October 15, ~~2025~~2035, no later than ~~September 1~~October 15, ~~2025~~2035 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). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect ~~Cash~~ a Settlement Method with respect to any conversion on such Conversion Date or ~~Physical Settlement~~ during such period, and the Company shall be deemed to have elected ~~Combination~~ the Default Settlement in Method with respect ~~of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal~~ to ~~$1,000~~such conversion. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount 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 timely elect a Settlement Method or specify as applicable a Specified Dollar Amount shall not constitute a Default under this Indenture. By notice to ~~Holders of the Notes~~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 ~~September 1~~October 15, ~~2025~~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 a 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 ~~for all Conversion Dates occurring subsequent~~ or with an ability to ~~delivery~~ 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 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 ~~notice. Not later than three Business Days after providing notice to Holders~~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 ~~an irrevocable~~ such Specified Dollar Amount no later than the relevant deadline for election ~~with respect to the~~ of a specified Settlement Method as ~~described~~ set forth in the immediately preceding ~~sentence~~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 ~~issue~~ apply to all conversions of Notes with Conversion Dates occurring subsequent to the delivery of such notice (or, in the case of a ~~Current Report on Form 8-K~~ 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 ~~press release~~ make an Irrevocable Settlement Election has been delivered pursuant to this Section 14.02(a)(iii)); provided, however, that no such change or ~~otherwise provide public disclosure in a manner compliant~~ election shall affect any Settlement Method theretofore elected (or deemed to be elected) with ~~Regulation FD announcing that the Company has made such irrevocable election~~respect to any Note. For the avoidance of doubt, such an ~~irrevocable election~~Irrevocable Settlement Election, if ~~made~~made by the Company, ~~will~~ shall be effective without the need to amend this ~~Second Supplemental~~ Indenture or the Notes, including pursuant to ~~Section 9.02(i~~‎‎Section 10.01(m). However, the Company ~~may, nonetheless,~~ may 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 this paragraph, then, concurrently with providing notice to Holders 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 current report on Form 8-K (or any successor form) that is filed with the Commission. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 20 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 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~~Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or (if applicable), the Daily Conversion ~~Values, as the case may be,~~ Values (if applicable) and the amount of cash payable in lieu of delivering any fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~11.02(h~~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~~ facsimile, PDF or other electronic transmission thereof) (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 ~~11.02(h~~14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 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 ~~12.03~~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~~, 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 ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to a converting ~~Holders~~Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be entitled, in ~~certificate form or in~~ book-entry ~~format~~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 (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 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 ~~11.04~~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 1114. (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~~, and the Company shall not adjust the Conversion Rate to adjust for any accrued and unpaid interest on 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 ~~excluding~~not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of 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 such Interest Payment Date,~~ payable on the Notes so ~~converted~~converted on the corresponding Interest Payment Date; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a 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 (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts exist at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the Common Shares shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects (or is deemed to have elected) to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional Common Shares upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Common Shares issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of Common Shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional Common 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 ~~11.02~~14.02, Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), upon conversion of any Note, 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, cash (“Cash Settlement”), shares of Class A Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Class A Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Physical Settlement”) or a combination of cash and shares of Class A Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Class A Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~14.02. (i) All conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Notice of Redemption with respect to the Notes and prior to the related Redemption Date, and all conversions for which the relevant Conversion Date occurs on or after ~~September 1~~April 15, ~~2025~~ 2025, shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Notice of Redemption with respect to the Notes but prior to the related Redemption Date, and any conversions for which the relevant Conversion Date occurs on or after ~~September 1~~April 15, 2025, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion Date (or the period described in the third immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the 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 for which the relevant Conversion Date occurs (x) after the date of issuance of a Notice of Redemption with respect to the Notes and prior to the related Redemption Date, in such Notice of Redemption or (y) on or after ~~September 1~~April 15, 2025, no later than ~~September 1~~April 14, 2025). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. 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 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 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 need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its option. (iv) The cash, shares of Class A Common ~~Shares~~ Stock or combination of cash and shares of Class A Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Class A Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 40 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, 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 50 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~~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 the amount of cash payable in lieu of delivering fractional shares of Class A Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~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 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 ~~11.02(h~~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 thereof) (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 ~~11.02(h~~14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be ~~surrendered~~ 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 ~~12.03~~15.03. If a Holder submits its Notes for required repurchase, the Holder’s right to withdraw the Fundamental Change Repurchase Notice and convert the Notes that are subject to repurchase will terminate at the close of business on the Business Day immediately preceding the relevant Fundamental Change Repurchase Date. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered~~, 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 ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the second Business Day immediately following the last Trading Day of the relevant Observation Period, in the case of any other Settlement Method. If any shares of Class A Common ~~Shares~~ Stock are due to a converting ~~Holders~~Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of shares of Class A Common ~~Shares~~ Stock to which such Holder shall be entitled, in certificate form or in book-entry format, 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 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 ~~11.04~~14.04, no adjustment shall be made for dividends on any shares of Class A Common ~~Shares~~ Stock issued upon the conversion of any Note as provided in this Article 1114. (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~~, and the Company shall not adjust the Conversion Rate to adjust for any accrued and unpaid interest on 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 ~~excluding~~not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Class A Common ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (34) to the extent of any Defaulted Amounts, if any Defaulted Amounts ~~exist~~ exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the shares of Class A Common ~~Shares~~ Stock shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Combination Settlement), as the case may be). Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Class A Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Class A Common ~~Shares~~ Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for ~~conversion,~~ conversion if the Company has elected Combination Settlement, the full number of ~~Common Shares~~ shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional ~~Common Shares~~ 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) Subject to this Section ~~11.02~~14.02, Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), upon conversion of any Note, the Company shall ~~pay~~ satisfy its Conversion Obligation by paying or ~~deliver~~delivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~14.02. (i) (x) All conversions of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period and (y) all conversions for which the relevant Conversion Date occurs on or after ~~September 1~~July 15, ~~2025~~ 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 ~~September 1~~July 15, ~~2025~~2026, and except to the extent the Company elects Physical Settlement to apply pursuant to Section 14.01(b)(ii) in a notice as described in such Section, the Company shall use the same Settlement Method for all conversions ~~with~~ occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions ~~with~~ that occur on different Conversion Dates. (iii) If, in respect of any Conversion Date (or one of the ~~period~~ periods described in the ~~third~~ fourth immediately succeeding set of parentheses, as 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, 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 (w) any conversions of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period, in the related Redemption Notice, (x) any conversions of Notes for which the relevant Conversion Date occurs on or after ~~September 1~~July 15, ~~2025~~2026, no later than ~~September 1~~the close of business on the Business Day immediately preceding July 15, ~~2025~~2026, (y) any conversion for which the Company has irrevocably elected Physical Settlement to apply pursuant to Section 14.01(b)(ii) in a notice as described in such Section or (z) any conversion for which the Company has irrevocably elected Combination Settlement, with a certain Specified Dollar Amount or a Minimum Specified Amount per $1,000 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 prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement for such conversion or during such period and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. 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 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 of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. By written notice to ~~Holders of~~ the ~~Notes, the Trustee and the Conversion Agent (if other than the Trustee)~~Holders, the Company may, prior to ~~September 1~~July 15, ~~2025~~2026, at its option, ~~irrevocably~~ elect to ~~satisfy its Conversion Obligation with respect~~ irrevocably fix the Settlement Method to any Settlement Method that the ~~Notes through a~~ 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 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 principal amount of Notes. The irrevocable election shall apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such notice~~. Not later than three Business Days after providing notice~~ ; provided that no such election will affect any Settlement Method theretofore elected (or deemed to ~~Holders, the Trustee and the Conversion Agent (if other than the Trustee~~be elected) ~~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 electionany Note. For the avoidance of doubt, such an irrevocable election, if made, ~~will~~ shall be effective without the need to amend this ~~Second Supplemental~~ Indenture or the Notes, including pursuant to Section ~~9.02(i~~10.01(i). However, the Company ~~may, nonetheless,~~ may nonetheless choose to execute such an amendment at its option. If the Company irrevocably fixes the Settlement Method pursuant to the provisions in this Section 14.02(a)(iii), and such Settlement Method is not Combination Settlement with a Specified Dollar Amount of $1,000 per $1,000 principal amount of Notes, then, concurrently with providing written notice to Holders of such election, the Company shall either post the fixed Settlement Method on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (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 number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, 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 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~~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 the amount of cash payable in lieu of delivering fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~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 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 ~~11.02(h~~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~~ facsimile, PDF or other electronic transmission thereof) (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 ~~11.02(h~~14.02(h). The Trustee (~~and~~ and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 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 ~~12.03~~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~~, 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 ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the second Business Day immediately following the last Trading Day of the relevant Observation Period, in the case of any other Settlement Method; provided that, with respect to any Conversion Date occurring during a Redemption Period or after the Regular Record Date immediately preceding the Maturity Date, the Company will settle any such conversion for which Physical Settlement is applicable on the relevant Redemption Date or the Maturity Date, as applicable). If any shares of Common ~~Shares~~ Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver ~~(if applicable) to the Conversion Agent or~~ to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be ~~entitled, in certificate form or in book-entry format,~~ entitled 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 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 ~~11.04~~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 1114. (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~~, and the Company shall not adjust the Conversion Rate to adjust for any accrued and unpaid interest on 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 excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and 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 such Interest Payment Date,~~ payable on the Notes so ~~converted~~converted (regardless of whether the converting Holder was the Holder of record on the corresponding Regular Record Date); provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a 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 (34) to the extent of any Defaulted Amounts, if any Defaulted Amounts exist at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the Common Shares shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects (or is deemed to have elected) to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional Common Shares upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Common Shares issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of Common Shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional Common Shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Sources: Indenture (Brookdale Senior Living Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02, Section 11.03(b)~~ 13.02 and Section ~~11.07(a~~13.07(a), upon conversion of any New Second Lien Convertible Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of New Second Lien Convertible Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 13.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 13.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~13.02. (i) All conversions for which the relevant Conversion Date occurs after the Company’s issuance of a notice of redemption with respect to the New Second Lien Convertible Notes and prior to the related redemption date, and all conversions for which the relevant Conversion Date occurs on or after ~~September 1~~May 30, ~~2025~~ 2027 shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs after the Company’s issuance of a notice of redemption with respect to the New Second Lien Convertible Notes but prior to the related redemption date, and any conversions for which the relevant Conversion Date occurs on or after ~~September 1~~May 30, ~~2025~~2027, the Company shall use the same Settlement Method for all conversions ~~with~~ occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion Date (or any conversions for which the ~~period described~~ relevant Conversion Date occurs (x) during a Redemption Period, in ~~the third immediately succeeding set~~ such notice of ~~parentheses~~redemption or (y) on or after May 30, ~~as the case may be~~2027), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, ~~through~~ with a copy to the Convertible Second Lien Trustee and the Conversion Agent (if other than the Convertible Second Lien Trustee), shall deliver such Settlement Notice to converting Holders no later than the ~~close~~ Close of ~~business~~ Business on the ~~second~~ Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs (x) during a Redemption Period, in such notice of redemption or (y) on or after ~~September 1~~May 30, ~~2025~~2027, no later than ~~September 1~~the Close of Business on the Scheduled Trading Day immediately preceding May 30, ~~2025~~2027). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or ~~Physical~~ Combination Settlement with respect to such conversion or during such period and the Company shall be deemed to have elected ~~Combination~~ Physical Settlement in respect of its Conversion Obligation~~, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000~~. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of ~~Combination~~ Physical Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of New Second Lien Convertible 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 New Second Lien Convertible Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of New Second Lien Convertible 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 need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its option. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of New Second Lien Convertible Notes (the “Settlement Amount”) shall be computed as follows: (A1) 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 New Second Lien Convertible Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date; (B2) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of New Second Lien Convertible Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 forty (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, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of New Second Lien Convertible Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 forty (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~~Stock, the Company shall notify the Convertible Second Lien Trustee and the Conversion Agent (if other than the Convertible Second Lien Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common ~~Shares~~Stock. The Convertible Second Lien Trustee and the Conversion Agent (if other than the Convertible Second Lien Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~13.02(e), before any Holder of a New Second Lien Convertible Note shall be entitled to convert a New Second Lien Convertible Note as set forth ~~above~~herein, such Holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~11.02(h~~13.02(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 or electronic transmission thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of New Second Lien Convertible Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates or book-entry statements for any shares of Common ~~Shares~~ Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such New Second Lien Convertible 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 ~~11.02(h~~13.02(h). The Convertible Second Lien Trustee (~~and~~ and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 XIII on the Conversion Date for such conversion. No Notice of Conversion with respect to any New Second Lien Convertible Notes may be surrendered by a Holder thereof if such ~~Holder~~ ▇▇▇▇▇▇ has also delivered a Fundamental Change ~~Repurchase Notice~~ repurchase notice to the Company in respect of such New Second Lien Convertible Notes and has not validly withdrawn such Fundamental Change ~~Repurchase Notice~~ repurchase notice in accordance with Section ~~12.03~~3.12. If more than one New Second Lien Convertible Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such New Second Lien Convertible Notes shall be computed on the basis of the aggregate principal amount of the New Second Lien Convertible 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 New Second Lien Convertible Note shall be deemed to have been converted immediately prior to the ~~close~~ Close of ~~business~~ 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 ~~11.03(b) and Section 11.07(a~~13.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical ~~Settlement~~Settlement (provided that, with respect to any Conversion Date following the regular record date immediately preceding the maturity date where Physical Settlement applies to the related conversion, the Company shall settle any such conversion on the maturity date), or on the second Business Day immediately following the last Trading Day of the relevant Observation Period, in the case of any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver ~~(if applicable)~~ to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be ~~entitled, in certificate form or in book-entry format,~~ entitled in satisfaction of the Company’s Conversion Obligation. (d) In case any New Second Lien Convertible 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 Convertible Second Lien Trustee shall authenticate and deliver to or upon the written order of the Holder of the New Second Lien Convertible Note so surrendered a new New Second Lien Convertible Note or New Second Lien Convertible Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered New Second Lien Convertible Note, without payment of any service charge by the converting Holder but, if required by the Company or Convertible Second Lien 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 New Second Lien Convertible Notes issued upon such conversion being different from the name of the Holder of the old New Second Lien Convertible Notes surrendered for such conversion. (e) If a Holder submits a New Second Lien Convertible 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 or book-entry statements representing the shares of Common ~~Shares~~ Stock being issued in a name other than the Holder’s name until the Convertible Second Lien 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 ~~11.04~~13.04, no adjustment shall be made for dividends on any shares of Common ~~Shares~~ Stock issued upon the conversion of any New Second Lien Convertible Note as provided in this Article 11XIII. (g) Upon the conversion of an interest in a Global Note, the Convertible Second Lien Trustee, or the Custodian at the direction of the Convertible Second Lien Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Convertible Second Lien Trustee in writing of any conversion of New Second Lien Convertible Notes effected through any Conversion Agent other than the Convertible Second Lien Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below~~, and the Company shall not adjust the Conversion Rate to adjust for any accrued and unpaid interest on 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 New Second Lien Convertible Note and accrued and unpaid interest, if any, to, but ~~excluding~~not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~not including, the relevant Conversion Date shall be deemed to be paid in full rather than ~~cancelled~~canceled, extinguished or forfeited. Upon a conversion of New Second Lien Convertible Notes into a combination of cash and shares of Common ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if New Second Lien Convertible Notes are converted after the ~~close~~ Close of ~~business~~ Business on a ~~Regular Record~~ regular record date and prior to the Open of Business on the corresponding Interest Payment Date, Holders of such New Second Lien Convertible Notes as of the ~~close~~ Close of ~~business~~ Business on such ~~Regular Record Date~~ regular record date will receive the full amount of interest payable on such New Second Lien Convertible Notes on the corresponding Interest Payment Date notwithstanding the conversion. New Second Lien Convertible Notes surrendered for conversion during the period from the ~~close~~ Close of ~~business~~ Business on any ~~Regular Record Date~~ regular record date to the ~~open~~ Open of ~~business~~ Business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest ~~payable, on such Interest Payment Date,~~ payable on the New Second Lien Convertible Notes so converted; provided that no such payment shall be required (1) for conversions following the ~~Regular Record Date~~ regular record date immediately preceding the ~~Maturity Date~~maturity date or any redemption 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~~ Payment Date that is after a ~~Regular Record Date~~ regular record date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (34) to the extent of any Defaulted Amounts, if any Defaulted Amounts ~~exist~~ exists at the time of conversion with respect to such New Second Lien Convertible Note. Therefore, for the avoidance of doubt, all Holders of record on the ~~Regular Record Date~~ regular record date immediately preceding the ~~Maturity~~ maturity date, any redemption date or any Fundamental Change Payment Date as described in the immediately preceding sentence shall receive the full interest payment due on the ~~Maturity~~ maturity date or other applicable Interest Payment Date regardless of whether their New Second Lien Convertible Notes have been converted following such ~~Regular Record Date~~regular record date. (i) The Person in whose name the shares of Common ~~Shares~~ Stock shall be issuable upon conversion shall be treated as a stockholder of record as of the ~~close~~ Close of ~~business~~ Business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of New Second Lien Convertible Notes, such Person shall no longer be a Holder of such New Second Lien Convertible Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common ~~Shares~~ Stock upon conversion of the New Second Lien Convertible Notes and shall instead pay cash in lieu of delivering any fractional share of Common ~~Shares~~ Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each New Second Lien Convertible Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of Common Shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional Common Shares remaining after such computation shall be paid in cash.(or

Appears in 1 contract

Sources: Second Lien Indenture (Bed Bath & Beyond Canada L.P.)

Appears in 1 contract

Sources: Indenture (Aurora Cannabis Inc)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~14.02, Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), upon conversion of any Note, the Company shall ~~pay~~ satisfy its Conversion Obligation by paying or ~~deliver~~delivering, as the case may be, to the converting Holder, in respect of each $1,000 ~~principal amount~~ Capitalized Principal Amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~14.02, but in any event subject to the consent of the converting Holder as specified in clause (iii) below in the event of any Settlement Method other than Physical Settlement. (i) ~~All~~ (x) For all conversions for which the relevant Conversion Date occurs during the same Redemption Period and (y) all conversions for which the relevant Conversion Date occurs on or after ~~September~~ July 1, ~~2025~~ 2027, the Company shall elect the same Settlement Method (but, for the avoidance of doubt, if a converting Holder does not consent to a Settlement Method other than Physical Settlement, conversions of Notes by such Holder shall be settled ~~using~~ as though the ~~same~~ Company had elected Physical Settlement ~~Method~~and the Company may settle conversions by any consenting converting Holder pursuant to the Settlement Method elected by the Company). (ii) Except for any such conversions for which the relevant Conversion Date occurs during the same Redemption Period and any conversions for which the relevant Conversion Date occurs on or after ~~September~~ July 1, ~~2025~~2027, the Company shall use the same Settlement Method for all conversions ~~with~~ occurring on the same Conversion ~~Date~~Date (but, for the avoidance of doubt, if a converting Holder does not consent to a Settlement Method other than Physical Settlement, conversions of Notes by such Holder shall be settled as though the Company had elected Physical Settlement and the Company may settle conversions by any consenting converting Holder pursuant to the Settlement Method elected by the Company), 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 one of the ~~period~~ periods described ~~in the third immediately succeeding set of parentheses~~below, as the case may be), the Company elects to a Settlement Method other than Physical Settlement, 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, through the Trustee, 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 ~~second~~ Trading Day immediately following the relevant Conversion Date (or, in the case of (x) any conversions for which the relevant Conversion Date occurs during the related Redemption Period, in the related Redemption Notice or (y) any conversions of Notes for which the relevant Conversion Date occurs on or after ~~September~~ July 1, ~~2025~~2027, no later than ~~September~~ the close of business on the Business Day immediately preceding July 1, ~~2025~~2027); provided that to the extent the Company elects any Settlement Method other than Physical Settlement in respect of any conversion, such election shall not be effective unless a converting Holder provides written consent to the Company (with a copy to the Trustee and the Conversion Agent) approving such Settlement Method election by the close of business on the day such Settlement Notice is delivered. If the Company does not timely elect a Settlement Method prior to the deadline set forth in the immediately preceding ~~sentence~~sentence (or if a converting Holder does not timely provide such written consent to the Company (with a copy to the Trustee and the Conversion Agent) with respect to any Settlement Method other than Physical Settlement), the Company shall no longer have the right to elect Cash Settlement or ~~Physical~~ Combination Settlement for such conversion or during such period and the Company shall be deemed to have elected ~~Combination~~ Physical Settlement in respect of its Conversion Obligation~~, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000~~. ~~Such~~ Any Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 ~~principal amount~~ Capitalized Principal Amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation and the converting Holder consents to such Settlement Method, but the Company does not ~~indicate a~~ timely notify converting Holders of the Specified Dollar Amount per $1,000 ~~principal amount~~ Capitalized Principal Amount of Notes 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 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 need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its option. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as ~~follows:~~follows (for the avoidance of doubt, with pro-ration for any portion of the Capitalized Principal Amount subject to conversion that is not an integral multiple of $1,000): (A) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 ~~principal amount~~ Capitalized Principal Amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 ~~principal amount~~ Capitalized Principal Amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 40 consecutive Trading Days during the related Observation Period; and (C) if the Company elects ~~(or is deemed to have elected)~~ to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, 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 50 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~~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 the amount of cash payable in lieu of delivering fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (vi) Unless and until the Company obtains stockholder approval to issue shares of Common Stock such that a converting Holder may beneficially own a number of shares of Common Stock in excess of the Conversion Share Cap upon conversion of such Holder’s Notes in accordance with the listing standards of the Nasdaq Global Market, the Company will not be obligated to deliver any shares of Common Stock to any such Holder such that such Holder would beneficially own a number of shares of Common Stock (including, for the purposes of such calculation, any shares of Common Stock issuable to such Holder in connection with the exercise of any warrants) in excess of the Conversion Share Cap immediately following any conversion. To the extent any conversion would otherwise result in the Company, if the Company were to elect or be deemed to elect Physical Settlement, being required to deliver any shares of Common Stock to any Holder such that such converting Holder would beneficially own a number of shares of Common Stock in excess of the Conversion Share Cap immediately following such conversion, such conversion shall instead by deemed to be a partial conversion pursuant to Section 14.02(d), such that the Capitalized Principal Amount of Notes being converted would require the Company, if the Company were to elect or be deemed to elect Physical Settlement, to deliver the maximum number of shares of Common Stock that would not result in such converting Holder beneficially owning in excess of the Conversion Share Cap. The Conversion Share Cap will apply until the elimination of the Conversion Share Cap is approved by the Company’s stockholders. (b) Subject to Section ~~11.02(e~~14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (A) complete, manually sign and deliver to the Company a duly completed Conversion Share Cap Certification in the form of Exhibit B hereto and (B) (i) in the case of a Global Note, comply with the 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 ~~11.02(h~~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~~ facsimile, PDF or other electronic transmission thereof) (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 ~~11.02(h~~14.02(h). The Trustee (~~and~~ and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 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 ~~12.03~~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~~, 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, as determined by the Company. Except as set forth in Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~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 (or is deemed to have elected) Physical Settlement, or on the second Business Day immediately following the last Trading Day of the relevant Observation Period, in the case of any other Settlement Method; provided that, with respect to any Conversion Date occurring during a Redemption Period or after the Regular Record Date immediately preceding the Maturity Date, the Company will settle any such conversion for which Physical Settlement is applicable on the relevant Redemption Date or the Maturity Date, as applicable. If any shares of Common ~~Shares~~ Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver ~~(if applicable) to the Conversion Agent or~~ to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be ~~entitled, in certificate form or in book-entry format,~~ entitled 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~~ 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 ~~11.04~~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 1114. (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 any~~interest that has not been paid or capitalized, except as set forth below~~, and the Company shall not adjust the Conversion Rate to adjust for any accrued and unpaid interest on 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~~ Capitalized Principal Amount of the Note and any accrued ~~and unpaid interest, if any~~interest that has not been paid or capitalized, to, but ~~excluding~~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 ~~excluding~~not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common ~~Shares~~Stock, accrued ~~and unpaid~~ interest that has not been paid or capitalized will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and on or prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on in cash at the ~~corresponding~~ Cash Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable, on such Interest Payment Date, on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) Rate as if the Company ~~has specified a Fundamental Change Repurchase 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; or (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts exist at the time of conversion with respect to~~ Cash Method for all such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the Common Shares shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects (or is deemed to have elected) to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional Common Shares upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Common Shares issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of Common Shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional Common Shares remaining after such computation shall be paid in cash.int

Appears in 1 contract

Sources: Indenture (View, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~14.02, Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), upon conversion of any Note, the Company shall ~~pay~~ satisfy its Conversion Obligation by paying or ~~deliver~~delivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~14.02. (i) All conversions of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period, and all conversions for which the relevant Conversion Date occurs on or after ~~September 1~~October 15, ~~2025~~ 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 the related Redemption Period, and any conversions for which the relevant Conversion Date occurs on or after ~~September 1~~October 15, ~~2025~~2029, 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 conversions of Called Notes for which the ~~period~~ relevant Conversion Date occurs during the related Redemption Period, or any conversions for which the relevant Conversion Date occurs on or after October 15, 2029 or for which the Company has irrevocably elected Physical Settlement pursuant to Section 14.01(b)(ii) in a notice as described in ~~the third immediately succeeding set of parentheses, as the case may be~~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, through the Trustee,~~ 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 ~~second~~ Trading Day immediately following the relevant Conversion Date (or, in the case of (A) any conversions of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period, in the related Notice of Redemption, (B) any conversions of Notes for which the relevant Conversion Date occurs on or after ~~September 1~~October 15, ~~2025~~2029, no later than ~~September 1~~October 15, ~~2025~~2029 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). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect ~~Cash~~ a Settlement Method with respect to any conversion on such Conversion Date or ~~Physical Settlement~~ during such period, and the Company shall be deemed to have elected ~~Combination~~ the Default Settlement in Method with respect ~~of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal~~ to ~~$1,000~~such conversion. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount 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 timely elect a Settlement Method or specify as applicable a Specified Dollar Amount shall not constitute a Default or Event of Default under this Indenture. By notice to ~~Holders of the Notes~~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 ~~September 1~~October 15, ~~2025~~2029. By notice to all Holders, the Company may, prior to October 15, 2029, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through a 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 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 $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 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. ~~Not later than three Business Days after~~ 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 ~~an irrevocable election with respect to the Settlement Method as described in the immediately preceding sentence~~such change or election, the Company shall ~~issue~~ either post the Default Settlement Method or fixed Settlement Method, as the case may be, on its website or disclose the same in a ~~Current Report~~ current report on Form 8-K (or ~~press release or otherwise provide public disclosure in a manner compliant~~ any successor form) that is filed 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 need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its optionCommission. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 25 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 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 (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~~Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or (if applicable), the Daily Conversion ~~Values, as the case may be,~~ Values (if applicable) and the amount of cash payable in lieu of delivering any fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~11.02(h~~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~~ 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 ~~11.02(h~~14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 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 ~~12.03~~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~~, 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 ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to a converting ~~Holders~~Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be entitled, in ~~certificate form or in~~ book-entry ~~format~~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 (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 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 ~~11.04~~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 1114. (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~~, and the Company shall not adjust the Conversion Rate to adjust for any accrued and unpaid interest on 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 ~~excluding~~not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common ~~Shares~~Stock, accrued and unpaid interest ~~will~~ 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 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 such Interest Payment Date,~~ payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the close of business on the Regular Record Date immediately preceding the Maturity Date; (2) ~~if the Company has specified~~ for conversions of Called Notes 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 Date~~Redemption Period; or (3) ~~to the extent of any Defaulted Amounts,~~ if any Defaulted Amounts exist at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the Common Shares shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects (or is deemed to have elected) to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional Common Shares upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Common Shares issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of Common Shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional Common Shares remaining after such computation shall be paid in cash.the

Appears in 1 contract

Sources: Indenture (Par Technology Corp)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~14.02, Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), upon conversion of any Note, 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, cash (“Cash Settlement”), ~~Common Shares~~shares of Class C Capital Stock, together with cash, if applicable, in lieu of delivering any fractional ~~Common Shares~~ share of Class C Capital Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Physical Settlement”) or a combination of cash and ~~Common Shares~~shares of Class C Capital Stock, together with cash, if applicable, in lieu of delivering any fractional ~~Common Shares~~ share of Class C Capital Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~14.02. (i) All conversions for which the relevant Conversion Date occurs on or after September 1, ~~2025~~ 2021, and all conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date, shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption 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 September 1, ~~2025~~2021, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion Date (or one of the ~~period~~ periods described in the third immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the 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 for which the relevant Conversion Date occurs (x) 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 or (y) on or after September 1, ~~2025~~2021, no later than September 1, ~~2025~~2021). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. 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 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 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 need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its option. (iv) The cash, ~~Common Shares~~ shares of Class C Capital Stock or combination of cash and ~~Common Shares~~ shares of Class C Capital Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of ~~Common Shares~~ shares of Class C Capital Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 20 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, 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 50 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 ~~Common Share~~share of Class C Capital 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 the amount of cash payable in lieu of delivering fractional ~~Common Shares~~shares of Class C Capital Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~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 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 ~~11.02(h~~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 thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ~~Common Shares~~ shares of Class C Capital Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~11.02(h~~14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered 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 ~~12.03~~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~~, 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 ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the ~~second~~ third Business Day immediately following the relevant Conversion Date, if the Company elects Physical ~~Settlement~~Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Company shall deliver the consideration due in respect of the Conversion Obligation on the Maturity Date), or on the ~~second~~ third Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any ~~Common Shares~~ shares of Class C Capital Stock are due to a converting ~~Holders~~Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of ~~Common Shares~~ shares of Class C Capital Stock to which such Holder shall be entitled, in certificate form or in book-entry format, 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~~ shares of Class C Capital Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the ~~Common Shares~~ shares of Class C Capital Stock being issued in a name other than the Holder’s name until the 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 ~~11.04~~14.04, no adjustment shall be made for dividends on any ~~Common Shares~~ shares of Class C Capital Stock issued upon the conversion of any Note as provided in this Article 1114. (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~~, and the Company shall not adjust the Conversion Rate to adjust for any accrued and unpaid interest on 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 ~~excluding~~not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and ~~Common Shares~~shares of Class C Capital Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the 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 (34) to the extent of any Defaulted Amounts, if any Defaulted Amounts ~~exist~~ exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the ~~Common Shares~~ shares of Class C Capital Stock shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional ~~Common Shares~~ share of Class C Capital Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional ~~Common Shares~~ share of Class C Capital Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of ~~Common Shares~~ shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional ~~Common Shares~~ shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Sources: Indenture (Zillow Group, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~14.02, Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), upon conversion of any Note, the Company shall ~~pay~~ satisfy its Conversion Obligation by paying or ~~deliver~~delivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~14.02. (i) All conversions of Notes in connection with a Notice of Redemption, and all conversions for which the relevant Conversion Date occurs on or after ~~September 1~~July 15, ~~2025~~ 2032, shall be settled using the same Settlement Method. (ii) Except for any conversions of Notes in connection with a Notice of Redemption, and any conversions for which the relevant Conversion Date occurs on or after ~~September 1~~July 15, ~~2025~~2032, 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 conversions of Notes in connection with a Notice of Redemption, any conversions for which the ~~period~~ relevant Conversion Date occurs on or after July 15, 2032 or for which the Company has irrevocably elected Physical Settlement pursuant to ‎ Section 14.01(b)(ii) in a notice as described in ~~the third immediately succeeding set of parentheses, as the case may be~~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, through the Trustee,~~ 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 ~~second~~ 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 on or after ~~September 1~~July 15, ~~2025~~2032, no later than ~~September 1~~July 15, ~~2025~~2032 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). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect ~~Cash~~ a Settlement Method with respect to any conversion on such Conversion Date or ~~Physical Settlement~~ during such period, and the Company shall be deemed to have elected ~~Combination~~ the Default Settlement in Method with respect ~~of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal~~ to ~~$1,000~~such conversion. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount 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 timely elect a Settlement Method or specify as applicable a Specified Dollar Amount shall not constitute a Default under this Indenture. By notice to ~~Holders of the Notes~~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 ~~September 1~~July 15, ~~2025~~2032. By notice to all Holders, the Company may, prior to July 15, 2032, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through a 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 ~~for all Conversion Dates occurring subsequent~~ or with an ability to ~~delivery~~ 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 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 ~~notice. Not later than three Business Days after providing notice to Holders~~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 ~~an irrevocable~~ such Specified Dollar Amount no later than the relevant deadline for election ~~with respect to the~~ of a specified Settlement Method as ~~described~~ set forth in the immediately preceding ~~sentence~~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 ~~issue~~ apply to all conversions of Notes with Conversion Dates occurring subsequent to the delivery of such notice (or, in the case of a ~~Current Report on Form 8-K~~ 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 ~~press release~~ make an Irrevocable Settlement Election has been delivered pursuant to this Section 14.02(a)(iii)); provided, however, that no such change or ~~otherwise provide public disclosure in a manner compliant~~ election shall affect any Settlement Method theretofore elected (or deemed to be elected) with ~~Regulation FD announcing that the Company has made such irrevocable election~~respect to any Note. For the avoidance of doubt, such an ~~irrevocable election~~Irrevocable Settlement Election, if ~~made~~made by the Company, ~~will~~ shall be effective without the need to amend this ~~Second Supplemental~~ Indenture or the Notes, including pursuant to ~~Section 9.02(i~~‎‎Section 10.01(m). However, the Company ~~may, nonetheless,~~ may 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 this paragraph, then, concurrently with providing notice to Holders 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 current report on Form 8-K (or any successor form) that is filed with the Commission. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 20 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 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~~Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or (if applicable), the Daily Conversion ~~Values, as the case may be,~~ Values (if applicable) and the amount of cash payable in lieu of delivering any fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~11.02(h~~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~~ facsimile, PDF or other electronic transmission thereof) (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 ~~11.02(h~~14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 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 ~~12.03~~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~~, 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 ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to a converting ~~Holders~~Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be entitled, in ~~certificate form or in~~ book-entry ~~format~~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 (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 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 ~~11.04~~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 1114. (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~~, and the Company shall not adjust the Conversion Rate to adjust for any accrued and unpaid interest on 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 ~~excluding~~not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of 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 such Interest Payment Date,~~ payable on the Notes so ~~converted~~converted on the corresponding Interest Payment Date; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a 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 (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts exist at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the Common Shares shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects (or is deemed to have elected) to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional Common Shares upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Common Shares issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of Common Shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional Common Shares remaining after such computation shall be paid in cash.Regular

Appears in 1 contract

Sources: Indenture (AST SpaceMobile, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~14.02, Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), upon conversion of any Note, 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, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~14.02. (i) All conversions of Notes for which the relevant Conversion Date occurs on or after ~~September 1~~June 15, ~~2025~~ 2028, 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 the related Redemption Period and any conversions for which the relevant Conversion Date occurs on or after ~~September 1~~June 15, ~~2025~~2028, 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 the period described in the ~~third~~ fourth immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a written notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the ~~Company, through the Trustee,~~ 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 ~~second~~ Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions of Notes (x) called for redemption (or deemed called for redemption pursuant to Section 14.01(b)(ii)) for which the relevant Conversion Date occurs during the related Redemption Period, in such Redemption Notice, (y) for which the relevant Conversion Date occurs on or after ~~September 1~~June 15, ~~2025~~2028, no later than ~~September 1~~June 15, ~~2025~~2028 or (z) for which the Company has irrevocably elected Physical Settlement pursuant to Section 14.01(b)(iii), in the related Certain Distributions Notification) (in each case, the “Settlement Method Election Deadline”). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect ~~Cash~~ a Settlement Method with respect to any conversion on such Conversion Date or ~~Physical Settlement~~ during such period, and the Company shall be deemed to have elected ~~Combination~~ the Default Settlement in Method with respect ~~of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal~~ to ~~$1,000~~such conversion. ~~Such~~ Any Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company ~~delivers a Settlement Notice electing~~ timely elects Combination Settlement in (or is deemed to have elected Combination Settlement) with respect ~~of its Conversion Obligation~~ to a conversion but does not ~~indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice,~~ timely notify 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~~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 $1,000 per $1,000 principal amount of Notes. For the avoidance of doubt, the Company’s failure to timely elect a Settlement Method or specify the applicable Specified Dollar Amount shall not constitute a default under this Indenture. The Company may, by notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) prior to ~~September 1~~June 15, ~~2025, at its option~~2028, irrevocably ~~elect~~ fix the Settlement Method, to ~~satisfy its Conversion Obligation with respect~~ any Settlement Method that the Company is then permitted to ~~the Notes through a~~ elect, including Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 ~~for~~ 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 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 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~~. Not later than three Business Days after providing notice to Holders~~; provided, however, that no such change in the ~~Trustee and the Conversion Agent (if other than the Trustee) of an~~ Default Settlement Method or irrevocable election shall affect any Settlement Method theretofore elected (or deemed to be elected) 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 electionany conversion. For the avoidance of doubt, such an irrevocable election, if made, ~~will~~ shall be effective without the need to amend this ~~Second Supplemental~~ Indenture or the Notes, including pursuant to the provisions described in Section ~~9.02(i~~10.01(l). However, the Company ~~may, nonetheless,~~ may nonetheless choose to execute such an amendment at ~~its~~ 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: (A) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion ~~Date~~Date (plus cash in lieu of any fractional share of Common Stock issuable upon conversion); (B) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 20 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, 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 50 20 consecutive Trading Days during the related Observation ~~Period~~Period (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~~Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) in writing of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~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 procedures of the Depositary in effect at that time and, if required, pay funds equal to ~~interest~~ the Special Interest, if any, payable on the next Special Interest Payment Date to which such Holder is not entitled as set forth in Section ~~11.02(h~~14.02(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 thereof) (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, if any, payable on the next Special Interest Payment Date to which such Holder is not entitled as set forth in Section ~~11.02(h~~14.02(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 11 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered 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 ~~12.03~~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~~, 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 ~~11.03(b~~14.03(b) and Section ~~11.07(a~~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 to satisfy its Conversion Obligation through Physical ~~Settlement~~Settlement (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, 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, in if the ~~case of~~ Company elects to satisfy its Conversion Obligation through any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to a converting ~~Holders~~Holder, the Company shall issue or cause to be issued, and deliver (if 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 ~~certificate form or in~~ book-entry ~~format~~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 (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 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 ~~11.04~~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 1114. (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~~Special Interest, if any, except as set forth below~~, and the Company shall not adjust the Conversion Rate to adjust for any accrued and unpaid interest on 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~~Special Interest, if any, to, but ~~excluding~~not including, the relevant Conversion Date. As a result, accrued and unpaid ~~interest~~Special Interest, if any, to, but ~~excluding~~not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common ~~Shares~~Stock, accrued and unpaid ~~interest~~ Special Interest, if any, 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~~ Special Interest, if any, payable on such Notes (to, but not including, such Special Interest Payment Date) 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 such Interest Payment Date, on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a 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 (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts exist at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the Common Shares shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects (or is deemed to have elected) to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional Common Shares upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Common Shares issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of Common Shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional Common Shares remaining after such computation shall be paid in cash.a

Appears in 1 contract

Sources: Indenture (Alnylam Pharmaceuticals, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~14.02, Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), upon conversion of any Note, 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, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~14.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~September 1~~April 15, ~~2025~~ 2028, and all conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date, shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption 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 ~~September 1~~April 15, ~~2025~~2028, 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 one of the ~~period~~ periods described in the ~~third~~ fifth immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the ~~Company, through the Trustee,~~ Company shall deliver such Settlement Notice to converting Holders (or, in the case of Global Notes, by electronic delivery in accordance with the Depositary’s procedures), with a copy to the Trustee and the Conversion Agent (if other than the Trustee), no later than the close of business on the second Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs (x) 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 or (y) on or after ~~September 1~~April 15, ~~2025~~2028, no later than ~~September 1~~April 15, ~~2025~~2028). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. 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 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 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 need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its option. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 30 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 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~~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 the amount of cash payable in lieu of delivering fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~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 procedures of the Depositary in effect at that time and, if ~~required~~required pursuant to Section 14.02(e), pay ~~funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 11.02(h) and (ii) in the case of a Physical Note (1) complete~~all transfer or similar taxes and, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile thereof) (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 ~~11.02(h). The Trustee (and if different, the Conversion Agent~~14.02(h) shall notify the Company of any conversion pursuant to this Article 11 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered 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 12.03. 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 11.03(b) and Section 11.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any Common Shares are due to converting Holders, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of Common Shares to which such Holder shall be entitled, in certificate form or in book-entry format, 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 11.04, no adjustment shall be made for dividends on any Common Shares issued upon the conversion of any Note as provided in this Article 11. (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, and the Company shall not adjust the Conversion Rate to adjust for any accrued and unpaid interest on 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 excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and 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 such Interest Payment Date, on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a 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 (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts exist at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the Common Shares shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects (or is deemed to have elected) to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional Common Shares upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Common Shares issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of Common Shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional Common Shares remaining after such computation shall be paid in cash.and

Appears in 1 contract

Sources: Indenture (Mercadolibre Inc)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~14.02, Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), upon conversion of any Note, 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, cash (“Cash Settlement”), shares of Class A Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Class A Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Physical Settlement”) or a combination of cash and shares of Class A Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Class A Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~14.02. (i) All conversions of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period, and all conversions for which the relevant Conversion Date occurs on or after ~~September 1~~June 15, ~~2025~~ 2026 shall be settled using the same Settlement Method. (ii) Except for any conversions of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period, and any conversions for which the relevant Conversion Date occurs on or after ~~September 1~~June 15, ~~2025~~2026, 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 conversions of Called Notes for which the ~~period~~ relevant Conversion Date occurs during the related Redemption Period, or any conversions for which the relevant Conversion Date occurs on or after June 15, 2026 or for which the Company has irrevocably elected Physical Settlement pursuant to Section 14.01(b)(ii) in a notice as described in ~~the third immediately succeeding set of parentheses, as the case may be~~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, through the Trustee,~~ 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 ~~second~~ Trading Day immediately following the relevant Conversion Date (or, in the case of (A) any conversions of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period, in the related Redemption Notice, (B) any conversions of Notes for which the relevant Conversion Date occurs on or after ~~September 1~~June 15, ~~2025~~2026, no later than ~~September 1~~June 15, ~~2025~~2026 or (C) any conversions of Notes for which the Company has irrevocably elected Physical Settlement pursuant to Section 14.01(b)(ii), in the related notice as described in such Section). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. 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 delivers a Settlement Notice electing Combination Settlement (or has otherwise elected or 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 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 need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its option. (iv) The cash, shares of Class A Common ~~Shares~~ Stock or combination of cash and shares of Class A Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Class A Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 40 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 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~~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 the amount of cash payable in lieu of delivering fractional shares of Class A Common ~~Shares~~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) (an “Election Notice”), the Company may, prior to June 15, 2026, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through any Settlement Method that the Company is then permitted to elect (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) for all Conversion Dates occurring subsequent to delivery of such Election Notice. If the Company irrevocably elects to fix the Settlement Method 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 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 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 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 $1,000 per $1,000 principal amount of Notes. Concurrently with providing an Election Notice to all Holders, the Trustee and the Conversion Agent (if other than the Trustee) of an election to irrevocably fix the Settlement Method, the Company shall promptly issue a report on Form 8-K or press release announcing that the Company has elected to irrevocably fix the Settlement Method (and describing such Settlement Method). Notwithstanding the foregoing, no such irrevocable election shall affect any Settlement Method theretofore elected (or deemed to be elected) with respect to any Note pursuant to this Section 14.02. For the avoidance of doubt, such an irrevocable election, if made, shall be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(g). However, the Company may nonetheless choose to execute such an amendment at its option. (b) Subject to Section ~~11.02(e~~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 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 ~~11.02(h~~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 thereof) (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 ~~11.02(h~~14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered 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 ~~12.03~~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~~, 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 ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Class A Common ~~Shares~~ Stock are due to a converting ~~Holders~~Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to the ~~Conversion Agent or to such~~ converting Holder, or such Holder’s nominee or nominees, the full number of shares of Class A Common ~~Shares~~ Stock to which such Holder shall be entitled, in ~~certificate form or in~~ book-entry ~~format~~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 (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 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 ~~11.04~~14.04, no adjustment shall be made for dividends on any shares of Class A Common ~~Shares~~ Stock issued upon the conversion of any Note as provided in this Article 1114. (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~~, and the Company shall not adjust the Conversion Rate to adjust for any accrued and unpaid interest on 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 ~~excluding~~not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Class A Common ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (34) to the extent of any Defaulted Amounts, if any Defaulted Amounts ~~exist~~ exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the shares of Class A Common ~~Shares~~ Stock shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects (or is deemed to have elected) to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional Common Shares upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Common Shares issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of Common Shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional Common Shares remaining after such computation shall be paid in cash.P

Appears in 1 contract

Sources: Indenture (Fisker Inc./De)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~14.02, Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), upon conversion of any Note, the Company shall ~~pay~~ satisfy its Conversion Obligation by paying or ~~deliver~~delivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~14.02. (i) All conversions of Notes in connection with a Notice of Redemption, and all conversions for which the relevant Conversion Date occurs on or after ~~September 1~~July 15, ~~2025~~ 2030, shall be settled using the same Settlement Method. (ii) Except for any conversions of Notes in connection with a Notice of Redemption, and any conversions for which the relevant Conversion Date occurs on or after ~~September 1~~July 15, ~~2025~~2030, 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 conversions of Notes in connection with a Notice of Redemption, any conversions for which the ~~period~~ relevant Conversion Date occurs on or after July 15, 2030 or for which the Company has irrevocably elected Physical Settlement pursuant to Section 14.01(b)(ii) in a notice as described in ~~the third immediately succeeding set of parentheses, as the case may be~~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, through the Trustee,~~ 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 ~~second~~ 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 on or after ~~September 1~~July 15, ~~2025~~2030, no later than ~~September 1~~July 15, ~~2025~~2030 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). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect ~~Cash~~ a Settlement Method with respect to any conversion on such Conversion Date or ~~Physical Settlement~~ during such period, and the Company shall be deemed to have elected ~~Combination~~ the Default Settlement in Method with respect ~~of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal~~ to ~~$1,000~~such conversion. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount 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 timely elect a Settlement Method or specify as applicable a Specified Dollar Amount shall not constitute a Default under this Indenture. By notice to ~~Holders of~~ Holders, the ~~Notes~~Trustee and the Conversion Agent (if other than the Trustee), the Company may, from time to time, change the Default Settlement Method prior to July 15, 2030. By notice to all Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to ~~September 1~~July 15, ~~2025~~2030, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through a 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 ~~for all Conversion Dates occurring subsequent~~ or with an ability to ~~delivery~~ 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 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 ~~notice. Not later than three Business Days after providing notice to Holders~~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 ~~an irrevocable~~ such Specified Dollar Amount no later than the relevant deadline for election ~~with respect to the~~ of a specified Settlement Method as ~~described~~ set forth in the immediately preceding ~~sentence~~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 ~~issue~~ apply to all conversions of Notes with Conversion Dates occurring subsequent to the delivery of such notice (or, in the case of a ~~Current Report on Form 8-K~~ 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 ~~press release~~ make an Irrevocable Settlement Election has been delivered pursuant to this Section 14.02(a)(iii)); provided, however, that no such change or ~~otherwise provide public disclosure in a manner compliant~~ election shall affect any Settlement Method theretofore elected (or deemed to be elected) with ~~Regulation FD announcing that the Company has made such irrevocable election~~respect to any Note. For the avoidance of doubt, such an ~~irrevocable election~~Irrevocable Settlement Election, if ~~made~~made by the Company, ~~will~~ shall be effective without the need to amend this ~~Second Supplemental~~ Indenture or the Notes, including pursuant to Section ~~9.02(i~~10.01(m). However, the Company ~~may, nonetheless,~~ may 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 this paragraph, then, concurrently with providing notice to Holders 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 current report on Form 8-K (or any successor form) that is filed with the Commission. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 30 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 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 (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~~Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or (if applicable), the Daily Conversion ~~Values, as the case may be,~~ Values (if applicable) and the amount of cash payable in lieu of delivering any fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that ~~time and~~time, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~11.02(h~~14.02(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, PDF or other electronic transmission thereof) (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 ~~11.02(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 11 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 ~~12.03~~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~~, 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 ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical ~~Settlement~~Settlement (provided that, with respect to any Conversion Date occurring on or after October 1, 2030, we will deliver such consideration on the Maturity Date), or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to a converting ~~Holders~~Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be entitled, in ~~certificate form or in~~ book-entry ~~format~~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 (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 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 ~~11.04~~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 1114. (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~~, and the Company shall not adjust the Conversion Rate to adjust for any accrued and unpaid interest on 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 ~~excluding~~not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of 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 such Interest Payment Date, on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a 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 (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts exist at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the Common Shares shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects (or is deemed to have elected) to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional Common Shares upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Common Shares issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of Common Shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional Common Shares remaining after such computation shall be paid in cash.the

Appears in 1 contract

Sources: Indenture (Planet Labs PBC)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~14.02, Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), upon conversion of any Note, the Company ~~shall~~ shall, at its election, pay or deliver, as the case may be, to the converting Holder, in ~~respect~~ full satisfaction of ~~each $1,000 principal amount of Notes being converted~~its Conversion Obligation, cash (“Cash Settlement”), shares of the Class A Common ~~Shares, together with cash, if applicable, in lieu of delivering any fractional Common Shares in accordance with subsection (j) of this Section 11.02~~ Stock (“Physical Settlement”) or a combination of cash and shares of the Class A Common ~~Shares, together with cash, if applicable, in lieu of delivering any fractional Common Shares in accordance with subsection (j) of this Section 11.02~~ Stock (“Combination Settlement”), ~~at its election,~~ as set forth in this Section ~~11.02~~14.02. (i) All conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice and prior to the Scheduled Trading Day immediately preceding the related Redemption Date and all conversions of Notes for which the relevant Conversion Date occurs on or after ~~September 1~~May 30, ~~2025~~ 2030 shall be settled using the same Settlement ~~Method.~~ Method (iiincluding the same relative proportion of cash and/or shares of the Class A Common Stock, except that cash in lieu of delivering any fractional share of Class A Common Stock shall not be taken into account in determining such proportion) as all other conversions for which the relevant Conversion Date occurs on or after May 30, 2030. Except for any conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice and prior to the Scheduled Trading Day immediately preceding the related Redemption Date and all conversions of Notes for which the relevant Conversion Date occurs on or after ~~September 1~~May 30, ~~2025~~2030, the Company shall use the same Settlement Method (including the same relative proportion of cash and/or shares of the Class A Common Stock, except that cash in lieu of delivering any fractional share of Class A Common Stock shall not be taken into account in determining such proportion) for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (~~iii~~ii) ~~If, in respect of any Conversion Date (or~~ If the ~~period described in the third immediately succeeding set of parentheses, as the case may be)~~Company elects a Settlement Method, the Company ~~elects~~ shall deliver notice to ~~deliver a notice (~~Holders through the ~~“Settlement Notice”)~~ Conversion Agent of ~~the relevant~~ such Settlement Method ~~in respect of such Conversion Date (or such period, as~~ the ~~case may be), the Company, through the Trustee, shall deliver such Settlement Notice to converting Holders~~ Company has selected 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 Notes for which the relevant Conversion Date occurs (x) after the date of issuance of a Redemption Notice and prior to the Scheduled Trading Day immediately preceding the related Redemption Date, in such Redemption Notice or (y) on or after ~~September 1~~May 30, ~~2025~~2030, no later than ~~September 1~~May 30, ~~2025~~2030). If the Company does not timely elect a Settlement ~~Method prior to the deadline set forth in the immediately preceding sentence~~Method, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to that Conversion Date and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. ~~Such~~ If the Company has timely elected Combination Settlement ~~Notice shall specify the relevant Settlement Method and~~ in ~~the case~~ respect of ~~an election~~ any conversion but does not timely notify converting Holders of ~~Combination Settlement, the relevant Settlement Notice shall indicate~~ the Specified Dollar Amount per $1,000 principal amount of Notes~~. If~~ , or the Company ~~delivers a Settlement Notice electing~~ 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 in such Settlement Notice~~Settlement, 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 need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its option. (iviii) The cash, shares of Class A Common ~~Shares~~ Stock or combination of cash and shares of Class A Common ~~Shares~~ Stock payable or deliverable by the Company in respect of any conversion of Notes (the “Settlement Amount”) shall be computed by the Company as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Class A Common ~~Shares~~ Stock equal to the Conversion Rate ~~in effect~~ on the Conversion ~~Date~~Date (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, 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 50 45 consecutive VWAP Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or 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 50 45 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 Class A Common Share, 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 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 11.02(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 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 11.02(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 thereof) (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 11.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered 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 12.03. If more than one Note shall be surrendered for conversion at any one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted ~~thereby~~hereby) so surrendered. (iv) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last VWAP Trading Day of the related Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, ~~subject~~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 PDF thereof) (a “Notice of Conversion”) to the Conversion Agent and 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; (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. To the extent the Company enters into any note hedge transaction (or any other hedging transaction) with one or more counterparties in connection with the offering and sale of the Notes, the Trustee (and if different, the Conversion Agent) agree to notify each such counterparty of each such conversion, in such manner and containing such information as may be directed by the Company from time to time. 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 ~~Notes~~Note, has complied with the Applicable Procedures with respect to such a withdrawal) in accordance with the ~~rules~~ 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 ~~applicable Depositary~~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 (b~~Section 14.02(b) above. ~~Except as set forth in~~ Subject to the provisions of Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), the Company shall pay or deliver, as the case may be, the ~~consideration~~ Settlement Amount due in respect of the Conversion Obligation on on: (i) the second Business Day immediately following the relevant Conversion Date (or, if earlier, the Maturity Date), if the Company elects Physical Settlement~~, or on~~ ; or (ii) the second Business Day immediately following the last VWAP Trading Day of the relevant Observation Period, in if the ~~case of any other~~ Company elects Cash Settlement ~~Method~~or if the Company elects or is deemed to have elected Combination Settlement. If any shares of Class A Common ~~Shares~~ Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver ~~(if applicable) to the Conversion Agent or~~ to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary, as the case may be, for the full number of shares of Class A Common ~~Shares~~ Stock to which such Holder shall be ~~entitled, in certificate form or in book-entry format,~~ 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 $1.00 if PIK Interest has been paid) or an integral multiple of $1.00 in excess thereof, 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~~ issuance of any shares of Class A Common ~~Shares~~ Stock upon ~~conversion~~conversion of such Note, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of 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 11.04, no adjustment shall be made for dividends on any Common Shares issued upon the conversion of any Note as provided in this Article 11. (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 ~~conversion~~conversion of a Note, a the converting Holder shall not receive any separate cash payment ~~for~~ representing accrued and unpaid interest, if any, except as set forth in the paragraph below~~, and the Company shall not adjust the Conversion Rate to adjust for any accrued and unpaid interest on the Notes~~. 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 ~~excluding~~not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~not including, the relevant Conversion Date shall be deemed to be paid in full rather than ~~cancelled~~canceled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Class A Common ~~Shares~~Stock, accrued and unpaid interest ~~will~~ shall be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the ~~foregoing~~immediately preceding paragraph, if Notes are converted after the close of business on a Regular Record Date for the payment of interest, 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 such Interest Payment Date,~~ payable on the Notes so ~~converted~~converted on the corresponding Interest Payment Date (regardless of whether the converting Holder was the Holder of record on the corresponding Regular Record Date); provided that no such payment ~~shall~~ need be ~~required~~ made: (1i) if the Notes are surrendered for ~~conversions~~ conversion following the Regular Record Date immediately preceding the Maturity Date; ; (2ii) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading Day immediately following the corresponding Interest Payment Date; (iii) 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 (3iv) to the extent of any ~~Defaulted Amounts~~overdue interest, if any ~~Defaulted Amounts exist~~ 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 Section 14.02(g)(ii) above and any Fundamental Change Repurchase Date described in Section 14.02(g)(iii) above shall receive and retain the full interest payment due on the Maturity Date, any Redemption Date described in Section 14.02(g)(ii) above, any Fundamental Change Repurchase Date, any Fundamental Change Repurchase Date described in Section 14.02(g)(iii) above or other applicable Interest Payment Date regardless of whether their Notes have been converted following such Regular Record ~~Date~~Date and the converting Holder will not be required to make any interest payment. (ih) The Person in whose name ~~the~~ any shares of Class A Common ~~Shares shall be issuable~~ Stock delivered upon conversion are registered shall ~~be treated as a stockholder~~ become the holder of record of such shares as of the close of business on (i) the relevant Conversion Date (if the Company elects ~~to satisfy the related Conversion Obligation by~~ Physical ~~Settlement~~Settlement or (ii) or the last VWAP Trading Day of the relevant Observation Period (if the Company elects (or is deemed to have ~~elected) to satisfy the related Conversion Obligation by~~ elected Combination Settlement~~), as the case may be~~. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion; provided that (a) the converting Holder shall have the right to receive the Settlement Amount due upon conversion and (b) in the case of a conversion between a Regular Record Date and the corresponding Interest Payment Date, the Holder of record as of the close of business on such Regular Record Date shall have the right to receive the interest payable on such Interest Payment Date, in accordance with Section 14.02(g). (ji) The Company shall not issue any fractional share of Class A Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of ~~delivering~~ any fractional share of Class A Common ~~Shares~~ Stock issuable upon conversion in an amount based on (i) the Daily VWAP ~~for~~ on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of Common Shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional Common Shares remaining after such computation shall be paid in cash.elects Physical Settl

Appears in 1 contract

Sources: Indenture (DISH Network CORP)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~13.02, Section ~~11.03(b~~13.03(b) and Section ~~11.07(a~~13.07(a), upon conversion of any Note, 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, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, ~~together with cash~~together, if applicable, with cash in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with ~~subsection (j~~Section 13.02(j) ~~of this Section 11.02~~ (“Physical Settlement”) ), or a combination of cash and shares of Common ~~Shares~~Stock, ~~together with cash~~together, if applicable, with cash in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with ~~subsection (j~~Section 13.02(j) ~~of this Section 11.02~~ (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~13.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~September 1~~the date of the Company’s issuance of a Redemption Notice with respect to any Notes and prior to the related Redemption Date, and all conversions for which the relevant Conversion Date occurs on or after November 3, 2025 shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice 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 ~~September 1~~November 3, 2025, and except to the extent the Company elects Physical Settlement to apply pursuant to Section 13.01(b)(ii), the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion Date (or one of the ~~period~~ periods described in the third immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the ~~Company, through the Trustee,~~ Company shall deliver such Settlement Notice to converting Holders no later than the close of business on the ~~second~~ 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) on or after ~~September 1~~the date of issuance of a Redemption Notice and prior to the related Redemption Date, in such Redemption Notice or (B) on or after November 3, 2025, no later than ~~September 1~~the close of business on the Business Day immediately preceding November 3, 2025, (y) for which the Company has irrevocably elected Physical Settlement pursuant to Section 13.01(b)(ii), in the related notice described therein or (z) for which the Company has made an Irrevocable Election, 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, ~~the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and~~ then the Company shall be deemed to have elected ~~Combination~~ the Default 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~~such conversion. Such Settlement ~~Notice~~ Notice, if provided, shall specify the relevant Settlement Method ~~and~~ and, in the case ~~of an election~~ of Combination Settlement, the ~~relevant Settlement Notice shall indicate the~~ applicable Specified Dollar ~~Amount per $1,000 principal amount of Notes~~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 in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. By For the avoidance of doubt, the Company’s failure to so select a Settlement Method or Specified Dollar Amount when so permitted shall not constitute a Default or Event of Default under this Indenture or the Notes. Subject to Section 13.02(a)(iv), by notice to the Holders ~~of the Notes,~~ (with a copy to the Trustee and the Conversion ~~Agent (if other than the Trustee~~Agent), the Company may change the Default Settlement Method to any permitted Settlement Method. In addition, subject to Section 13.02(a)(iv), (A) the Company may, ~~prior to September 1, 2025, at its option, irrevocably elect to satisfy its Conversion Obligation with respect~~ by notice to the ~~Notes through a Combination Settlement~~ Holders (with a ~~Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 for all Conversion Dates occurring subsequent~~ copy to ~~delivery of such notice. Not later than three Business Days after providing notice to Holders,~~ the Trustee and the Conversion ~~Agent~~ Agent), irrevocably elect to either (~~if other than the Trustee~~x) ~~of an irrevocable election with respect to~~ fix 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 to any Settlement Method that the Company ~~has made~~ 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~~Irrevocable Election to the Holders. For the avoidance of doubt, ~~such an irrevocable election~~any Irrevocable Election, if made, will be effective without the need to amend this ~~Second Supplemental~~ Indenture or the Notes, including pursuant to Section ~~9.02(i~~10.01(i). However, the Company ~~may, nonetheless,~~ may nonetheless choose to execute such an amendment at its option. (iv) Notwithstanding anything to the contrary in Section 13.02(a)(iii), the Company may not change the Default Settlement Method or make an Irrevocable Election (x) during any Redemption Period (in respect of Notes converted with a Conversion Date occurring during such Redemption Period), (y) for any conversions for which the Company has irrevocably elected Physical Settlement to apply pursuant to Section 13.01(b)(ii) or (z) on or after November 3, 2025 (in respect of Notes converted with a Conversion Date that occurs on or after November 3, 2025). (v) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall ~~be computed as follows: (A) if~~ have the ~~Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder~~ following meaning in respect of each $1,000 principal amount of Notes being ~~converted~~ converted: (A) if Physical Settlement applies to such conversion, a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion ~~Date~~Date for such conversion; (B) if ~~the Company elects~~ Cash Settlement applies to ~~satisfy its Conversion Obligation in respect of~~ such ~~conversion by Cash Settlement~~conversion, ~~the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted~~ cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 40 consecutive VWAP Trading Days during the related Observation Period; and (C) if ~~the Company elects (or is deemed~~ Combination Settlement applies to ~~have elected) to satisfy its Conversion Obligation in respect of~~ such ~~conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted~~conversion, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 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 ~~Share~~Stock, if any, 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 the amount of cash payable in lieu of delivering fractional Common Shares~~same. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~13.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the 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 ~~11.02(h~~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 thereof) (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 ~~11.02(h~~13.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 13 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered 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 ~~12.03~~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~~, 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 11.03(b~~‎Section 13.03(b) and Section ~~11.07(a~~13.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if ~~the Company elects~~ Physical ~~Settlement~~Settlement applies, or on the second Business Day immediately following the last VWAP Trading Day of the Observation Period, ~~in the case of~~ if any other Settlement ~~Method~~Method applies; provided, however, that the Company shall settle on the Maturity Date (or, if the Maturity Date is not a Business Day, the immediately following Business Day) any conversions to which Physical Settlement applies and whose Conversion Date occurs on or after April 15, 2026. If any shares of Common ~~Shares~~ Stock are due to a converting ~~Holders~~Holder, the Company shall issue and deliver (or otherwise cause to be ~~issued, and deliver (if applicable~~delivered) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be entitled, in ~~certificate form or in~~ book-entry ~~format~~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 (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 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 ~~11.04~~13.04, no adjustment shall be made for dividends on any shares of Common ~~Shares~~ Stock issued upon the conversion of any Note as provided in this Article 1113. (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~~below in this Section 13.02(h), and the Company ~~shall~~ will not adjust the Conversion Rate ~~to adjust~~ for any accrued and unpaid interest on ~~the~~ 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 ~~excluding~~not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so converted; ~~provided~~ provided, however, that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a 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 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 (34) to the extent of any Defaulted Amounts, if any Defaulted Amounts ~~exist~~ exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record as of the close of business on the Regular Record Date immediately preceding the Maturity Date, or a Fundamental Change Repurchase Date or Redemption Date referred to above, shall receive the full interest payment due on the ~~Maturity~~ corresponding Interest Payment Date in cash regardless of whether their Notes have been converted following such Regular Record Date, and the converting Holder shall not be required to make a corresponding payment. (i) The Person in whose name ~~the~~ any shares of Common ~~Shares~~ Stock shall be issuable upon conversion shall be treated as a stockholder of record of such shares as of the close of business on the relevant Conversion Date (if ~~the Company elects~~ Physical Settlement applies to ~~satisfy the related Conversion Obligation by Physical Settlement~~such conversion) or as of the close of business on the last VWAP Trading Day of the relevant Observation Period (if ~~the Company elects (or is deemed~~ Combination Settlement applies to ~~have elected) to satisfy the related Conversion Obligation by Combination Settlement~~such conversion), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common ~~Shares~~ Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (or, if such conversion date is not a VWAP Trading Day, the immediately preceding VWAP Trading Day), in the case of Physical Settlement) , or based on the Daily VWAP for the last VWAP Trading Day of the relevant Observation ~~Period (~~Period, in the case of Combination Settlement). ~~For~~ Subject to any procedures or requirements of the applicable Depositary in the case of any Global Note, for each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of Common Shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional Common Shares remaining after such computation shall be paid in cash.Sett

Appears in 1 contract

Sources: Indenture (Cree, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~14.02, Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), upon conversion of any Note, 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, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~14.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~September 1~~May 15, ~~2025~~ 2026, 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 the second Scheduled Trading Day immediately preceding the related Redemption Date, shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Notice of Redemption with respect to 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 ~~September 1~~May 15, ~~2025~~2026, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion Date (or the period described in the third immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the 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 for which the relevant Conversion Date occurs (x) after the date of issuance of a Notice of Redemption with respect to the Notes and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date, in such Notice of Redemption or (y) on or after ~~September 1~~May 15, ~~2025~~2026, no later than ~~September 1~~May 15, ~~2025~~2026). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. 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 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 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 need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its option. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 30 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, 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 50 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~~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 the amount of cash payable in lieu of delivering fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~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 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 ~~11.02(h~~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 thereof) (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 ~~11.02(h~~14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered 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 ~~12.03~~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~~, 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 ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be entitled, in certificate form or in book-entry format, 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 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 ~~11.04~~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 1114. (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~~, and the Company shall not adjust the Conversion Rate to adjust for any accrued and unpaid interest on 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 ~~excluding~~not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so converted; provided that no such payment shall be required (1) for conversions ~~following~~ after the close of business on the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a 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 Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading Day immediately following the corresponding Interest Payment Date; or (34) to the extent of any Defaulted Amounts, if any Defaulted Amounts ~~exist~~ exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all applicable Holders of record at the close of business on the Regular Record Date immediately preceding the Maturity Date or any Redemption Date shall receive the full interest payment due on the Maturity Date or any Redemption Date, as the case may be, regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name ~~the~~ any shares of Common ~~Shares~~ Stock shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common ~~Shares~~ Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of ~~Common Shares~~ shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional ~~Common Shares~~ shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Sources: Indenture (Wayfair Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~14.02, Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), upon conversion of any Note, the Company shall pay cash up to the aggregate principal amount of the Notes to be converted and pay or deliver, as the case may be, to the converting Holder, cash, shares of Common Stock or a combination of cash and shares of Common Stock, at its election, in respect of the remainder, if any, of its Conversion Obligation in excess of the aggregate principal amount of the Notes being converted. Upon conversion, the Company shall 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, cash~~ converted (a “~~Cash Settlement~~Settlement Amount”~~), Common Shares~~) equal to the sum of the Daily Settlement Amounts for each of the 50 VWAP Trading Days during the relevant Observation Period for such Note, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with ~~subsection (j) of this~~ Section 11.02 (“Physical Settlement”) or a combination of cash and Common Shares, together with cash, if applicable, in lieu of delivering any fractional Common Shares in accordance with subsection (j) of this Section 11.02 (“Combination Settlement”14.02(i)~~, at its election~~, as set forth in this Section ~~11.02~~14.02. (i) All conversions of Notes (a) for which the relevant Conversion Date occurs on or after ~~September 1~~April 15, ~~2025~~ 2030, (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 (c) following the Company’s Irrevocable Election Notice pursuant to Section 14.02(a)(ii), in each case, shall be settled using the same ~~Settlement Method. (ii)~~ Cash Percentage. Except for (a) any conversions for which the relevant Conversion Date occurs on or after ~~September 1~~April 15, ~~2025~~2030, (b) 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 (c) any conversion following the Company’s Irrevocable Election Notice pursuant to Section 14.02(a)(ii), the Company shall use the same ~~Settlement Method~~ Cash Percentage for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same ~~Settlement Method~~ Cash Percentage with respect to conversions with different Conversion Dates. (~~iii~~ii) ~~If, in respect of any Conversion Date (or the period described in the third immediately succeeding set of parentheses, as the case may be),~~ If the Company elects to settle all or a portion of the Conversion Obligation in excess of the principal portion of the Notes being converted in cash, the Company shall deliver a notice to Holders so converting, the Trustee and the Conversion Agent (if other than the ~~“Settlement Notice”~~Trustee) of ~~the relevant Settlement Method in respect of~~ such ~~Conversion Date (or such period, as the case may be), the Company, through the Trustee, shall deliver such Settlement Notice to converting Holders~~ election no later than the close of business on the ~~second~~ Trading Day immediately following the ~~relevant~~ related Conversion ~~Date (or~~Date, or in the case of any conversions for which the relevant Conversion Date occurs ~~on or~~ after ~~September 1~~April 15, ~~2025~~2030, no later than ~~September 1~~April 15, ~~2025)~~2030, or 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 preceding the relevant Redemption Date, in the Notice of Redemption (which, in the case of a partial redemption, the Company will send simultaneously to all holders of notes not called for Redemption) and the Company shall indicate in such notice the Cash Percentage. If the Company does not elect a ~~Settlement Method~~ Cash Percentage prior to the deadline set forth in the ~~immediately~~ preceding sentence, the Company shall no longer have the right to elect a Cash ~~Settlement~~ Percentage with respect to that Conversion Date or ~~Physical Settlement~~ during such period and the Company shall ~~be deemed to have elected Combination Settlement~~ settle its Conversion Obligation by paying cash in respect of ~~its Conversion Obligation,~~ the principal portion of the converted Notes and ~~the Specified Dollar Amount per $1,000 principal amount~~ delivering shares of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement Common Stock in respect of the remainder, if any, 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 ~~in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000~~being converted. By notice to ~~Holders of the Notes~~Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to ~~September 1~~the close of business on the Scheduled Trading Day immediately preceding April 15, ~~2025~~2030, at its option, irrevocably elect (an “Irrevocable Election Notice”) to satisfy its Conversion ~~Obligation with respect~~ Obligations in excess of the principal portion of the Notes submitted for conversion subsequent to the ~~Notes~~ date of the Irrevocable Election Notice through a ~~Combination Settlement with a Specified Dollar Amount per~~ Cash Percentage of 0 percent for each $1,000 principal amount of ~~Notes of $1,000 for all Conversion Dates occurring subsequent to delivery of such notice~~Notes. ~~Not later than three Business Days after providing notice to Holders,~~ If the ~~Trustee and the Conversion Agent (if other than the Trustee) of~~ Company makes an ~~irrevocable election with respect to the Settlement Method as described in the immediately preceding sentence~~Irrevocable Election Notice, the Company ~~shall issue~~ shall, after the date of such election, either post the election on its website or disclose the same in a Current Report on Form 8-K (or ~~press release or otherwise provide public disclosure in a manner compliant~~ any successor form) that is filed 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 need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its optionCommission. (iviii) The cash, Common Shares or combination of cash and Common Shares in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of Common Shares equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, 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 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, 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 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 11.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the 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 11.02(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 thereof) (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 11.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered 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 12.03. If more than one Note shall be surrendered for conversion at any one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted ~~thereby~~hereby) so surrendered. (iv) The Daily Settlement Amounts (if applicable), ~~subject~~the Daily Net 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, the Daily Net 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, the Daily Net 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, 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 facsimile or delivery by electronic mail of a pdf thereof) (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 Stock to be delivered upon settlement of the Conversion Obligations to be registered, and surrender such Note to the Conversion Agent at the Corporate Trust Office or the office of the Conversion Agent (if other than the Trustee); (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 ~~Notes~~Note, has complied with the Applicable Procedures with respect to such a withdrawal) in accordance with the ~~rules~~ terms of Section 15.03. If a Holder has already delivered a Fundamental Change Repurchase Notice, such ▇▇▇▇▇▇’s right to withdraw such notice and convert the ~~applicable Depositary~~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) above~~Section 14.02(b). ~~Except as set forth in~~ Subject to the next paragraph and the provisions of Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), the Company shall pay or and deliver, as the case may be, the ~~consideration~~ Settlement Amount 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~~ to converting Holders on the second Business Day immediately following the last VWAP Trading Day of the relevant Observation Period~~, in the case of any other Settlement Method~~. If any shares of Common ~~Shares~~ Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary, as the case may be, for the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be ~~entitled, in certificate form or in book-entry format,~~ 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 (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 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 ~~conversion~~conversion of such Note, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common ~~Shares~~ Stock being issued in a name other than the Holder’s name until the 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 11.04, no adjustment shall be made for dividends on any Common Shares issued upon the conversion of any Note as provided in this Article 11. (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 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 ~~conversion~~conversion of a Note, a the converting Holder shall not receive any separate cash payment ~~for~~ representing accrued and unpaid interest, if any, except as set forth in the paragraph below~~, and the Company shall not adjust the Conversion Rate to adjust for any accrued and unpaid interest on the Notes~~. 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 ~~excluding~~not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~not including, the relevant Conversion Date shall be deemed to be paid in full rather than ~~cancelled~~canceled, extinguished or forfeited. Upon a conversion of ~~Notes into a combination of cash and Common Shares~~Notes, accrued and unpaid ~~interest will~~ interest, if any, shall be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the ~~foregoing~~immediately preceding paragraph, if Notes are converted after the close of business on a Regular Record Date for the payment of interest, 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 such Interest Payment Date,~~ payable on the Notes so ~~converted~~converted on the corresponding Interest Payment Date (regardless of whether the converting Holder was the Holder of record on the corresponding Regular Record Date); provided that no such payment ~~shall~~ need be ~~required~~ made: (1i) if the Notes are surrendered for ~~conversions~~ conversion following the Regular Record Date immediately preceding the Maturity Date; ; (2ii) if the Notes surrendered for conversion are subject to Redemption by the Company 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; (iii) 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 (3iv) to the extent of any ~~Defaulted Amounts~~Additional Interest or overdue interest, if any ~~Defaulted Amounts exist~~ Additional Interest or overdue interest exists at the time of conversion with respect to such Note. ~~Therefore, for~~ For the avoidance of doubt, all Holders as of ~~record~~ the close of business 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 shall receive and retain the full interest payment due on the Maturity Date or other applicable Interest Payment Date regardless of whether their Notes have been converted following such Regular Record Date. (ih) The Person in whose name ~~the~~ any shares of Common ~~Shares shall be issuable~~ Stock delivered upon conversion is registered shall ~~be treated as a stockholder~~ become the holder of record of such shares as of the close of business on the ~~relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the~~ last VWAP Trading Day of the relevant Observation ~~Period (if the Company elects (or is deemed to have elected) to satisfy the related Conversion Obligation by Combination Settlement), as the case may be~~Period. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion; 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 as of the close of business on such Regular Record Date shall have the right to receive the interest payable on such Interest Payment Date, in accordance with Section 14.02(g). (ji) The Company shall not issue any fractional share of Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of ~~delivering~~ any fractional share of Common ~~Shares~~ Stock issuable upon conversion in an amount based on 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 ~~Period (in the case of Combination Settlement)~~Period. For each Note surrendered for conversion, ~~if the Company has elected Combination Settlement,~~ the full number of ~~Common Shares~~ shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period ~~and~~ and, if applicable, any fractional ~~Common Shares~~ share remaining after such computation shall be paid in cash. (j) Upon surrender by a Holder of its Notes for conversion, the Company may, at its election (an “Exchange Election”), direct the surrender, on or prior to the second Business Day immediately following the relevant Conversion Date, of such Notes to a financial institution designated by the Company (the “Designated Financial Institution”) for exchange in lieu of conversion by the Company. In order to accept any Notes surrendered to the C

Appears in 1 contract

Sources: Indenture (Itron, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this ~~Section 11.02~~‎Section 14.02, ~~Section 11.03(b~~‎Section 14.03(b) and ~~Section 11.07(a~~‎Section 14.07(a), upon conversion of any Note, the Company shall ~~pay~~ satisfy its Conversion Obligation by paying or ~~deliver~~delivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j‎(j) of this ~~Section 11.02~~ ‎Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j‎(j) of this ~~Section 11.02~~ ‎Section 14.02 (“Combination Settlement”), at its election, as set forth in this ~~Section 11.02~~‎Section 14.02. (i) All conversions ~~for which the relevant Conversion Date occurs~~ occurring (x) on or after ~~September~~ December 1, ~~2025~~ 2025, (y) during a Redemption Period or (z) during the period after delivery to the Holders of a Certain Distributions Notification until the related Certain Distributions Conversion Period End Date shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs (x) on or after ~~September~~ December 1, 2025, (y) during a Redemption Period or (z) during the period after delivery to the Holders of a Certain Distributions Notification until the related Certain Distributions Conversion Period End Date, the Company shall use the same Settlement Method for all conversions ~~with~~ occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions ~~with~~ that occur on different Conversion Dates. (iii) If, in respect of any Conversion Date (or one of the ~~period~~ periods described in the ~~third~~ fourth immediately succeeding set of parentheses, as 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, through~~ 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 ~~second~~ Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions ~~for which~~ occurring (x) during a Redemption Period, in such Redemption Notice, (y) during the ~~relevant~~ period after delivery to the Holders of a Certain Distributions Notification until the related Certain Distributions Conversion Period End Date ~~occurs~~ in such Certain Distributions Notification or (z) on or after ~~September~~ December 1, 2025, no later than ~~September~~ the close of business on the Business Day immediately preceding December 1, 2025). 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, ~~the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and~~ then the Company shall be deemed to have elected ~~Combination~~ the Default Settlement in Method with respect ~~of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal~~ to ~~$1,000~~such Conversion. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount 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 then the Specified Dollar Amount for such conversion will be deemed to be $1,000 per $1,000 principal amount of Notes in such Settlement Notice. For the avoidance of doubt, the Company’s failure to timely elect a Settlement Method or specify the applicable Specified Dollar Amount ~~per $1,000 principal amount of Notes shall be deemed to be $1,000~~will not constitute a default under this Indenture. By In addition, the Company may, by notice to the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee), irrevocably fix the Settlement Method to any Settlement Method that the Company ~~may, prior~~ is then permitted to ~~September 1, 2025, at its option, irrevocably~~ elect in accordance with this Indenture that will apply to ~~satisfy its Conversion Obligation with respect to the~~ all conversions of 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~~ Date that is on or after the date the Company sends such notice. ~~Not later than three Business Days after~~ Concurrently with providing notice to ~~Holders,~~ all the ~~Trustee and~~ Holders of a change in the ~~Conversion Agent (if other than the Trustee) of~~ Default Settlement Method or an ~~irrevocable~~ election ~~with respect~~ to irrevocably fix the Settlement ~~Method as described in the immediately preceding sentence~~Method, the Company shall promptly issue a ~~Current Report~~ 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 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~~election will affect any Settlement Method theretofore elected (or deemed to be elected) with respect to any Note pursuant to ‎Section 14.02. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this ~~Second Supplemental~~ Indenture or the Notes, including pursuant to Section ~~9.02(i~~10.01(j). However, the Company ~~may, nonetheless,~~ may nonetheless choose to execute such an amendment at its option. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion ~~Date~~Date (plus cash in lieu of any fractional share of Common Stock issuable upon conversion); (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 40 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, 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 50 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~~Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) in writing of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to ~~Section 11.02(e~~‎Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time for converting a beneficial interest in a Global Note and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in ‎Section 14.02(h) and, if required, pay all transfer or similar taxes, if any, as set forth in Section ~~11.02(h~~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 thereof)~~ (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 11.02(h~~‎Section 14.02(h). The Trustee (~~and~~ and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this ~~Article 11~~ ‎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 12.03~~‎Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered~~, 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(b) above. Except as set forth in ~~Section 11.03(b~~‎‎Section 14.03(b) and ~~Section 11.07(a~~‎Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects to satisfy the Conversion Obligation through Physical Settlement, or on the second Business Day immediately following the last Trading Day of the relevant Observation Period, in the case of any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver ~~(if applicable) to the Conversion Agent or~~ to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be ~~entitled, in certificate form or in book-entry format,~~ entitled in satisfaction of the Company’s Conversion Obligation. (d) In ~~case~~ respect of certificated Notes, 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 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 11.04~~‎Section 14.04, no adjustment shall be made for dividends on any shares of Common ~~Shares~~ Stock issued upon the conversion of any Note as provided in this Article 1114. (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,~~ below and the Company shall not adjust the Conversion Rate ~~to adjust~~ for any accrued and unpaid interest on 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 excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes (to, but not including such 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~~ Date, however, must be accompanied by funds equal to the amount of interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so ~~converted~~converted on the corresponding Interest Payment Date (regardless of whether the converting Holder was the Holder of Record on such Regular Record Date); provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a 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 (34) to the extent of any ~~Defaulted Amounts~~overdue interest, if any ~~Defaulted Amounts exist~~ overdue interest exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the certificate for any shares of Common ~~Shares shall be issuable~~ Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common ~~Shares~~ Stock issuable upon conversion based on the Daily VWAP ~~for~~ on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP ~~for~~ on the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of Common Shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional Common Shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Sources: Indenture (Plug Power Inc)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this ~~Section 11.02~~‎Section 14.02, ~~Section 11.03(b~~‎Section 14.03(b) and ~~Section 11.07(a~~‎Section 14.07(a), upon conversion of any Note, the Company shall ~~pay~~ satisfy its Conversion Obligation by paying or ~~deliver~~delivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j‎(j) of this ~~Section 11.02~~ ‎Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j‎(j) of this ~~Section 11.02~~ ‎Section 14.02 (“Combination Settlement”), at its election, as set forth in this ~~Section 11.02~~‎Section 14.02. (i) All conversions of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period, and all conversions for which the relevant Conversion Date occurs on or after ~~September 1~~August 15, ~~2025~~ 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 the related Redemption Period, and any conversions for which the relevant Conversion Date occurs on or after ~~September 1~~August 15, 2025, 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 conversions of Called Notes for which the ~~period~~ relevant Conversion Date occurs during the related Redemption Period, or any conversions for which the relevant Conversion Date occurs on or after August 15, 2025 or for which the Company has irrevocably elected Physical Settlement pursuant to ‎‎Section 14.01(b)(ii) in a notice as described in ~~the third immediately succeeding set of parentheses, as the case may be~~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, 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 ~~second~~ Trading Day immediately following the relevant Conversion Date (or, in the case of (A) any conversions of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period, in the related Notice of Redemption, (B) any conversions of Notes for which the relevant Conversion Date occurs on or after ~~September 1~~August 15, 2025, no later than ~~September 1~~August 15, ~~2025~~2025 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). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect ~~Cash~~ a Settlement Method with respect to any conversion on such Conversion Date or ~~Physical Settlement~~ during such period, and the Company shall be deemed to have elected ~~Combination~~ the Default Settlement in Method with respect ~~of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal~~ to ~~$1,000~~such conversion. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount 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 timely elect a Settlement Method or specify as applicable a Specified Dollar Amount shall not constitute a Default under this Indenture. By notice to ~~Holders of the Notes~~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 ~~September 1~~August 15, 2025. By notice to all Holders, the Company may, prior to August 15, 2025, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through a 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 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 $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 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~~. Not later than three Business Days after providing notice~~ ; provided, however, that no such election will affect any Settlement Method theretofore elected (or deemed to ~~Holders, the Trustee and the Conversion Agent (if other than the Trustee~~be elected) ~~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 electionany Note. For the avoidance of doubt, such an irrevocable election, if ~~made~~made by the Company, will be effective without the need to amend this ~~Second Supplemental~~ Indenture or the Notes, including pursuant to ~~Section 9.02(i~~‎‎‎Section 10.01(m). However, the Company ~~may, nonetheless,~~ 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 either post the Default Settlement Method 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 successor form) that is filed with the Commission. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (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 number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 40 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 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~~Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or (if applicable), the Daily Conversion ~~Values, as the case may be,~~ Values (if applicable) and the amount of cash payable in lieu of delivering any fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to ~~Section 11.02(e~~‎Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to ~~interest~~ any Special Interest payable on the next Special Interest Payment Date to which such Holder is not entitled as set forth in ~~Section 11.02(h~~‎Section 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~~ 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 11.02(h~~‎Section 14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this ~~Article 11~~ ‎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 12.03~~‎Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered~~, 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(b) above. Except as set forth in ~~Section 11.03(b~~‎‎Section 14.03(b) and ~~Section 11.07(a~~‎Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical ~~Settlement~~Settlement (provided that, with respect to any Conversion Date following January 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, in the case of any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to a converting ~~Holders~~Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be entitled, in ~~certificate form or in~~ book-entry ~~format~~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 (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 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 11.04~~‎Section 14.04, no adjustment shall be made for dividends on any shares of Common ~~Shares~~ Stock issued upon the conversion of any Note as provided in this Article 1114. (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~~Special Interest, if any, except as set forth below~~, and the Company shall not adjust the Conversion Rate to adjust for any accrued and unpaid interest on 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~~Special Interest, if any, to, but ~~excluding~~not including, the relevant Conversion Date. As a result, accrued and unpaid ~~interest~~Special Interest, if any, to, but ~~excluding~~not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common ~~Shares~~Stock, any accrued and unpaid ~~interest~~ 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~~Date 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 payable, on such~~ any Special Interest ~~Payment Date,~~ payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following ~~the Regular Record Date immediately preceding~~ January 1, 2026, if Special Interest is payable on the Maturity Date; (2) 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 Interest Payment Date; or (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts exist at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the Common Shares shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects (or is deemed to have elected) to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional Common Shares upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Common Shares issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of Common Shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional Common Shares remaining after such computation shall be paid in cash.and

Appears in 1 contract

Sources: Indenture (Alarm.com Holdings, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~14.02, Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), upon conversion of any Note, 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, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~14.02. (i) All conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date, and all conversions for which the relevant Conversion Date occurs on or after ~~September 1~~March 15, ~~2025~~ 2026 shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice 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 ~~September 1~~March 15, ~~2025~~2026, 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 one of the ~~period~~ periods described in the third immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the ~~Trustee~~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 ~~second~~ 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) on or after ~~September 1~~the date of issuance of a Redemption Notice with respect to the Notes and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date, ~~2025~~in such Redemption Notice or (B) on or after March 15, 2026, no later than ~~September 1~~the close of business on the Business Day immediately preceding March 15, ~~2025~~2026 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 prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. 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 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 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 need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its option. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, 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 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~~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 the amount of cash payable in lieu of delivering fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~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 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 ~~11.02(h~~14.02(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 thereof) (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 ~~Agent~~Agent (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 ~~11.02(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 11 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered 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 ~~12.03~~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~~, 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 ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to a converting ~~Holders~~Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be entitled, in ~~certificate form or in~~ book-entry ~~format~~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 (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 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 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 ~~11.04~~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 1114. (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~~, and the Company shall not adjust the Conversion Rate to adjust for any accrued and unpaid interest on 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 ~~excluding~~not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date but prior to the open of business on the immediately following Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will 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 such Interest Payment Date,~~ payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second 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 (34) to the extent of any Defaulted Amounts, if any Defaulted Amounts ~~exist~~ 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, a Fundamental Change Repurchase Date or a Redemption Date shall receive the full interest payment due on the Maturity Date, the Fundamental Change Repurchase Date or the Redemption Date in cash regardless of whether their Notes have been converted following such Regular Record ~~Date~~Date and the converting Holder shall not be required to make a corresponding payment. (i) The Person in whose name the shares of Common ~~Shares~~ Stock shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common ~~Shares~~ Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of ~~Common Shares~~ shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional ~~Common Shares~~ shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Sources: Indenture (Apellis Pharmaceuticals, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~14.02, Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), upon conversion of any Note, the Company shall ~~pay~~ satisfy its Conversion Obligation by paying or ~~deliver~~delivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~14.02. (i) All conversions for which the relevant Conversion Date occurs (x) on or after ~~September 1~~May 15, ~~2025~~ 2026 and (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 ~~September 1~~May 15, ~~2025~~2026, the Company shall use the same Settlement Method for all conversions ~~with~~ occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions ~~with~~ that occur on different Conversion Dates. (iii) If, in respect of any Conversion Date (or any conversions of Called Notes for which the ~~period described in~~ relevant Conversion Date occurs during the ~~third immediately succeeding set of parentheses~~related Redemption Period, as or for which the ~~case may be~~relevant Conversion Date occurs on or after May 15, 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, through~~ 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 ~~second~~ Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date (x) occurs (i) during a Redemption Period, in such Redemption Notice or (ii) on or after ~~September 1~~May 15, ~~2025~~2026, no later than ~~September 1~~the close of business on the Business Day immediately preceding May 15, ~~2025~~2026 ) 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 ~~deadline set forth in the immediately preceding sentence~~Settlement Method Election Deadline, the Company shall no longer have the right to elect ~~Cash~~ a Settlement Method with respect to any conversion on such Conversion Date or ~~Physical Settlement~~ during such period, and the Company shall be deemed to have elected ~~Combination~~ the Default 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~~. 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 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 timely elect a Settlement Method or specify as applicable a Specified Dollar Amount shall not constitute a Default or Event of Default under this Indenture. By written notice to ~~Holders of~~ the ~~Notes~~Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company 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 ~~September 1~~May 15, ~~2025~~2026, 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 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 ~~for all Conversion Dates occurring subsequent to delivery~~ principal amount of Notes at or above a specific amount, the Company shall, after the date of such ~~notice. Not~~ election, inform Holders of the Notes, Trustee and the Conversion Agent (if other than the Trustee) of such Specified Dollar Amount no later than ~~three Business Days after providing notice to~~ the 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 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 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 in the Default Settlement Method or irrevocable election will affect any Settlement Method theretofore elected (or deemed to be elected) 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 electionany Note. For the avoidance of doubt, such an irrevocable election, if ~~made~~made by the Company, will be effective without the need to amend this ~~Second Supplemental~~ Indenture or the Notes, including pursuant to ~~Section 9.02(i~~‎‎Section 10.01(j). However, the Company ~~may, nonetheless,~~ 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 current report on Form 8-K (or any successor form) that is filed with the Commission. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (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 number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 40 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 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~~Stock, 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 Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time for converting a beneficial interest in a Global Note and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~11.02(h~~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 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~~ 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 ~~11.02(h~~14.02(h). The Trustee (~~and~~ and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 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 ~~12.03~~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~~, 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 11.03(b~~‎Section 14.03(b) and Section ~~11.07(a~~14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the second Business Day immediately following the last Trading Day of the relevant Observation Period, in the case of any other Settlement Method; provided that, with respect to any Conversion Date occurring during a Redemption Period, 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 converting Holders, the Company shall issue or cause to be issued, and deliver ~~(if applicable) to the Conversion Agent or~~ to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be ~~entitled, in certificate form or in book-entry format,~~ entitled in satisfaction of the Company’s Conversion Obligation. (d) In case any Physical 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 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 ~~11.04~~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 1114. (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~~, and the Company shall not adjust the Conversion Rate to adjust for any accrued and unpaid interest on 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 excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date shall be deemed to be paid in full rather than ~~cancelled~~canceled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common ~~Shares~~Stock, 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 such Interest Payment Date,~~ payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a ~~Fundamental Change Repurchase~~ Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts exist at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the Common Shares shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects (or is deemed to have elected) to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional Common Shares upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Common Shares issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of Common Shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional Common 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 ~~11.02~~14.02, Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), upon conversion of any Note, 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, cash (“Cash Settlement”), shares of Class A Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Class A Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Physical Settlement”) or a combination of cash and shares of Class A Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Class A Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~14.02. (i) Notwithstanding the foregoing, all conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Notice of Termination of Conversion Rights with respect to the Notes and prior to the Conversion Rights Termination Date shall be settled by Physical Settlement. All conversions for which the relevant Conversion Date occurs on or after ~~September 1~~May 15, ~~2025~~ 2031, shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Notice of 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 ~~September 1~~May 15, ~~2025~~2031, 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 the period described in the third immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the 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 for which the relevant Conversion Date occurs (x) after the date of issuance of a Notice of Termination of Conversion Rights with respect to the Notes and prior to the Conversion Rights Termination Date, in such Notice of Termination of Conversion Rights (which Settlement Method shall be Physical Settlement) or (y) on or after ~~September 1~~May 15, ~~2025~~2031, no later than ~~September 1~~May 15, ~~2025~~2031). If the Company does not elect a Settlement Method ~~prior to~~ by the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect ~~Cash~~ a Settlement ~~or Physical Settlement~~ Method and the Company shall be deemed to have elected ~~Combination~~ the Default Settlement in Method with respect ~~of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal~~ to ~~$1,000~~such conversion. ~~Such~~ Any Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company ~~delivers a Settlement Notice electing~~ timely elects Combination Settlement in with respect ~~of its Conversion Obligation~~ to a conversion but does not ~~indicate a~~ timely notify the converting Holder of the applicable Specified Dollar Amount, then the Specified Dollar Amount for such conversion will be deemed to be $1,000 per $1,000 principal amount of ~~Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000~~Notes. ~~By notice to Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee), the~~ The Company may, by notice to the Holders prior to ~~September 1~~May 15, ~~2025, at its option~~2031, irrevocably ~~elect~~ fix the Settlement Method, to ~~satisfy its~~ any Settlement Method that the Company is then permitted to elect, that will apply to all conversions of Notes with a Conversion ~~Obligation~~ 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 ~~the Notes through a Combination~~ which Physical Settlement shall apply). Concurrently 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,~~ all Holders of a change in the ~~Trustee and the Conversion Agent (if other than the Trustee) of an irrevocable election with respect to the~~ Default Settlement Method as ~~described~~ set forth in clause (ii) of the ~~immediately preceding sentence~~definition thereof or an election to irrevocably fix the Settlement Method, the Company shall promptly issue a ~~Current Report~~ 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 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~~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, ~~will~~ shall be effective without the need to amend this ~~Second Supplemental~~ Indenture or the Notes, including pursuant to the provisions described in Section ~~9.02(i~~10.01(g). However, the Company ~~may, nonetheless,~~ may nonetheless choose to execute such an amendment at ~~its~~ the Company’s option. (iv) The cash, shares of Class A Common ~~Shares~~ Stock or combination of cash and shares of Class A Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Class A Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 40 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, 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 50 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~~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 the amount of cash payable in lieu of delivering fractional shares of Class A Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~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 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 ~~11.02(h~~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 thereof) (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 ~~11.02(h~~14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be ~~surrendered~~ 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 ~~12.03~~15.03. If a Holder submits its Notes for required repurchase, the Holder’s right to withdraw the Fundamental Change Repurchase Notice and convert the Notes that are subject to repurchase will terminate at the close of business on the Business Day immediately preceding the relevant Fundamental Change Repurchase Date. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered~~, 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 ~~11.03(b~~14.03(b), Section 14.07(a) and Section ~~11.07(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, or on the second Business Day immediately following the last Trading Day of the relevant Observation Period, in the case of any other Settlement Method. If any shares of Class A Common ~~Shares~~ Stock are due to a converting ~~Holders~~Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of shares of Class A Common ~~Shares~~ Stock to which such Holder shall be entitled, in certificate form or in book-entry format, 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 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 ~~11.04~~14.04, no adjustment shall be made for dividends on any shares of Class A Common ~~Shares~~ Stock issued upon the conversion of any Note as provided in this Article 1114. (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~~, and the Company shall not adjust the Conversion Rate to adjust for any accrued and unpaid interest on 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 ~~excluding~~not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Class A Common ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a 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 (34) to the extent of any Defaulted Amounts, if any Defaulted Amounts ~~exist~~ exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the shares of Class A Common ~~Shares~~ Stock shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects (or is deemed to have elected) to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Class A Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Class A Common ~~Shares~~ Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for ~~conversion,~~ conversion if the Company has elected Combination Settlement, the full number of Common Shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional Common 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 ~~11.02~~14.02, Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), upon conversion of any Note, 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, cash (“Cash Settlement”), ~~Common Shares~~ADSs, together with cash, if applicable, in lieu of delivering any fractional ~~Common Shares~~ ADSs in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Physical Settlement”) or a combination of cash and ~~Common Shares~~ADSs, together with cash, if applicable, in lieu of delivering any fractional ~~Common Shares~~ ADS in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~14.02. (i) All conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Tax Redemption Notice with respect to the Notes and prior to the related Tax Redemption Date shall be settled using the same Settlement Method, and all conversions for which the relevant Conversion Date occurs on or after ~~September 1~~December 15, ~~2025~~ 2024 shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Tax Redemption Notice with respect to the Notes but prior to the related Tax Redemption Date, and any conversions for which the relevant Conversion Date occurs on or after ~~September 1~~December 15, ~~2025~~2024, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion Date (or one of the ~~period~~ periods described in the ~~third~~ fourth immediately succeeding set of parentheses, as 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, through~~ 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 ~~second~~ Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs (x) after the date of issuance of a Tax Redemption Notice with respect to the Notes and prior to the related Tax Redemption Date, in such Tax Redemption Notice or (y) on or after ~~September 1~~December 15, ~~2025~~2024, no later than ~~September 1~~December 15, ~~2025~~2024). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $US$1,000 principal amount of Notes shall be equal to $US$1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount 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. 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 need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its option. (iv) The cash, ~~Common Shares~~ ADSs or a combination of cash and ~~Common Shares~~ ADSs in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $US$1,000 principal amount of Notes being converted a number of ~~Common Shares~~ ADSs equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $US$1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 40 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, 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 50 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~~ADS, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) in writing of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional ~~Common Shares~~ADSs. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~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 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 ~~11.02(h~~14.02(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 thereof) (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 11.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered 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 12.03. 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 11.03(b) and Section 11.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any Common Shares are due to converting Holders, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of Common Shares to which such Holder shall be entitled, in certificate form or in book-entry format, 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 11.04, no adjustment shall be made for dividends on any Common Shares issued upon the conversion of any Note as provided in this Article 11. (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, and the Company shall not adjust the Conversion Rate to adjust for any accrued and unpaid interest on 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 excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and 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 such Interest Payment Date, on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a 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 (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts exist at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the Common Shares shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects (or is deemed to have elected) to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional Common Shares upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Common Shares issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of Common Shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional Common Shares remaining after such computation shall be paid in cash.in

Appears in 1 contract

Sources: Indenture (JOYY Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~14.02, Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), upon conversion of any Note, the Company shall ~~pay~~ satisfy its Conversion Obligation by paying or ~~deliver~~delivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~14.02. (i) All conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Notice of Redemption with respect to the Notes and prior to the related Redemption Date, and all conversions for which the relevant Conversion Date occurs on or after ~~September 1~~March 15, ~~2025~~ 2024, shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Notice of Redemption with respect to the Notes but prior to the related Redemption Date, and any conversions for which the relevant Conversion Date occurs on or after ~~September 1~~March 15, ~~2025~~2024, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion Date (or any conversions for which the ~~period described in~~ relevant Conversion Date occurs after the ~~third immediately succeeding set~~ Company’s issuance of ~~parentheses~~a Notice of Redemption with respect to the Notes and prior to the related Redemption Date, as or for which the ~~case may be~~relevant Conversion Date occurs on or after March 15, 2024), 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 (the ~~Company, through the Trustee, shall deliver such~~ “Settlement ~~Notice~~ 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 ~~second~~ Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs (x) after the date of issuance of a Notice of Redemption with respect to the Notes and prior to the related Redemption Date, in such Notice of Redemption or (y) on or after ~~September 1~~March 15, ~~2025~~2024, no later than ~~September 1~~March 15, ~~2025~~2024). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to any conversion on such Conversion Date or during such period, and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. 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 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 ~~of the Notes,~~ (with a copy to the Trustee and the Conversion Agent (if other than the Trustee)), the Company may, prior to ~~September 1~~March 15, ~~2025~~2024, 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 need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its option. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 40 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 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~~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 the amount of cash payable in lieu of delivering fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~11.02(h~~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~~ 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 payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~11.02(h~~14.02(h) and (5) if required, pay all transfer and similar taxes as set forth in Section 14.02(d) and Section 14.02(e), if any. The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 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 ~~12.03~~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~~, 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 ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical ~~Settlement~~Settlement (provided that, with respect to any Conversion Date following the Regular Record Date immediately preceding the Maturity Date where Physical Settlement applies to the related conversion, the Company shall settle any such conversion on the Maturity Date), or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to a converting ~~Holders~~Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be entitled, in ~~certificate form or in~~ book-entry ~~format~~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 (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~~ issuance of any shares of Common ~~Shares~~ Stock upon ~~conversion~~conversion thereof, 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 ~~11.04~~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 1114. (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~~, and the Company shall not adjust the Conversion Rate to adjust for any accrued and unpaid interest on 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 ~~excluding~~not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Schedule 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 (34) to the extent of any Defaulted Amounts, if any Defaulted Amounts ~~exist~~ 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 and any Fundamental Change Repurchase Date described in clause (3) 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 the shares of Common ~~Shares~~ Stock shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common ~~Shares~~ Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of ~~Common Shares~~ shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional ~~Common Shares~~ shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Sources: Indenture (Sailpoint Technologies Holdings, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~14.02, Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), upon conversion of any Note, the Company shall ~~pay~~ satisfy its Conversion Obligation by paying or ~~deliver~~delivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~14.02. (i) All conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Notice of Redemption with respect to the Notes and prior to the related Redemption Date shall be settled using the same Settlement Method, and all conversions for which the relevant Conversion Date occurs on or after ~~September 1~~March 15, ~~2025~~ 2025, shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Notice of Redemption with respect to the Notes but prior to the related Redemption Date, and any conversions for which the relevant Conversion Date occurs on or after ~~September 1~~March 15, 2025, 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 conversions for which the ~~period~~ relevant Conversion Date occurs after the Company’s issuance of a Notice of Redemption with respect to the Notes and prior to the related Redemption Date, or for which the relevant Conversion Date occurs on or after March 15, 2025 or for which the Company has irrevocably elected Physical Settlement pursuant to Section 14.01(b)(ii) in a notice as described in ~~the third immediately succeeding set of parentheses, as the case may be~~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, 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 (A) for which the relevant Conversion Date occurs (x) after the date of issuance of a Notice of Redemption with respect to the Notes and prior to the related Redemption Date, in such Notice of Redemption or (y) on or after ~~September 1~~March 15, 2025, no later than ~~September 1~~March 15, ~~2025~~2025 or (B) 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 prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to any conversion on such Conversion Date or during such period, and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. 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 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)~~all Holders, the Company may, prior to ~~September 1~~March 15, 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~~ ; provided, however, that no such election will affect any Settlement Method theretofore elected (or deemed to ~~Holders, the Trustee and the Conversion Agent (if other than the Trustee~~be elected) ~~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 electionany Note. For the avoidance of doubt, such an irrevocable election, if ~~made~~made by the Company, will be effective without the need to amend this ~~Second Supplemental~~ Indenture or the Notes, including pursuant to Section ~~9.02(i~~10.01(m). However, the Company ~~may, nonetheless,~~ may nonetheless choose to execute such an amendment at its option. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 30 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 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~~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 the amount of cash payable in lieu of delivering fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~11.02(h~~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~~ 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 ~~11.02(h~~14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 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 ~~12.03~~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~~, 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 ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical ~~Settlement~~Settlement (provided that, with respect to any Conversion Date following the Regular Record Date immediately preceding the Maturity Date where Physical Settlement applies to the related conversion, the Company shall settle any such conversion on the Maturity Date), or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to a converting ~~Holders~~Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be entitled, in ~~certificate form or in~~ book-entry ~~format~~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 (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 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 ~~11.04~~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 1114. (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~~, and the Company shall not adjust the Conversion Rate to adjust for any accrued and unpaid interest on 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 ~~excluding~~not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (34) to the extent of any Defaulted Amounts, if any Defaulted Amounts ~~exist~~ exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the shares of Common ~~Shares~~ Stock shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common ~~Shares~~ Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of ~~Common Shares~~ shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any ~~fractional Common Shares remaining after such computation shall be paid in cash.~~frac

Appears in 1 contract

Sources: Indenture (Datadog, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~14.02, Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), upon conversion of any Note, 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, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~14.02. (i) All conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date, and all conversions for which the relevant Conversion Date occurs on or after ~~September 1~~August 15, ~~2025~~ 2030 shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice 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 ~~September 1~~August 15, ~~2025~~2030, 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 one of the ~~period~~ periods described in the ~~third~~ fourth immediately succeeding set of parentheses, as 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, through~~ 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 ~~second~~ Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs (x) after the date of issuance of a Redemption Notice with respect to the Notes and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date, in such Redemption Notice, or (y) on or after ~~September 1~~August 15, ~~2025~~2030, no later than ~~September 1~~August 15, ~~2025~~2030). Delivery of such Settlement Notice is irrevocable. If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement for such conversion and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. 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 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 in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. ~~By notice~~ If the Company calls any Notes for redemption pursuant to ~~Holders~~ Article 16, and the related Redemption Date is on or after August 15, 2030 (x) if the date of the ~~Notes~~relevant Redemption Notice occurs prior to 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 August 15, ~~the Trustee and the~~ 2030, then, in respect of all conversions with a Conversion ~~Agent (if other than the Trustee)~~Date occurring on or after August 15, 2030, the Company ~~may, prior to September 1, 2025, at its option, irrevocably~~ must 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~~ that the Company elected (or was deemed to have elected) in such Redemption Notice and (y) if the ~~immediately preceding sentence~~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 August 15, 2030, then, the Company ~~shall issue a Current Report on Form 8-K or press release or otherwise provide public disclosure~~ must elect in ~~a manner compliant with Regulation FD announcing~~ such Redemption Notice the Settlement Method that the Company ~~has made such irrevocable election. For the avoidance~~ elected (or was deemed to have elected) in respect of ~~doubt~~all conversions with a Conversion Date occurring on or after August 15, such an irrevocable election, if made, will be effective without the need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its option2030. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion ~~Date~~Date (plus cash in lieu of any fractional share); (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 20 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, 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 50 20 consecutive Trading Days during the related Observation ~~Period~~Period (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~~Stock, and 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 Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common ~~Shares~~Stock 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 August 15, 2030, 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 ~~11.02(e~~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 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 ~~11.02(h~~14.02(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~~ facsimile, PDF or other electronic transmission thereof) (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 ~~11.02(h~~14.02(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 ~~11 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 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 ~~12.03~~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~~, 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 ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical ~~Settlement~~Settlement (provided that, with respect to any Conversion Date occurring on or after November 1, 2030, 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, in the case of any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to a converting ~~Holders~~Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to the ~~Conversion Agent or to such~~ converting Holder, or such Holder’s nominee or nominees, the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be entitled, in ~~certificate form or in~~ book-entry ~~format~~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 (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 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 ~~11.04~~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 1114. (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,~~ below and the Company shall not be required to adjust the Conversion Rate ~~to adjust~~ for any accrued and unpaid ~~interest on the Notes~~interest. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but ~~excluding~~not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. 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 such Interest Payment Date,~~ payable on the Notes so ~~converted~~converted on the corresponding Interest Payment Date; 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 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 (34) to the extent of any Defaulted ~~Amounts~~Amounts or Additional Interest, if any Defaulted Amounts ~~exist~~ 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 shall receive the full interest payment due on the Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the Common Shares shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects (or is deemed to have elected) to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional Common Shares upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Common Shares issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of Common Shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional Common Shares remaining after such computation shall be paid in cash.shares o

Appears in 1 contract

Sources: Indenture (Upstart Holdings, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~14.02, Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), upon conversion of any Note, the Company shall ~~pay~~ satisfy its Conversion Obligation by paying or ~~deliver~~delivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~14.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~September 1~~August 15, ~~2025~~ 2029, and all conversions of Notes for which the relevant Conversion Date occurs during the related Redemption Period, shall be settled using the same Settlement Method. (ii) Except for any conversions of Notes for which the relevant Conversion Date occurs during the related Redemption Period, and any conversions for which the relevant Conversion Date occurs on or after ~~September 1~~August 15, ~~2025~~2029, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion Date (or ~~the period described~~ in the ~~third immediately succeeding set~~ case of ~~parentheses~~any conversions for which the relevant Conversion Date occurs (i) during a Redemption Period, as in the ~~case may be~~related Notice of Redemption or (ii) on or after August 15, 2029, no later than August 15, 2029), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the ~~Company, through the Trustee,~~ 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 ~~second~~ Trading Day immediately following the relevant Conversion Date (~~or,~~ or in the case of any conversions for which the relevant Conversion Date occurs (i) during a Redemption Period, in the related Notice of Redemption or (ii) on or after ~~September 1~~August 15, ~~2025~~2029, no later than ~~September 1~~August 15, ~~2025~~2029). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or ~~Physical~~ Combination Settlement with respect to any conversion on such Conversion Date or during such period, and the Company shall be deemed to have elected ~~Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000~~Physical Settlement. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount 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. 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 ~~need~~ Company’s failure to ~~amend this Second Supplemental Indenture~~ timely elect a Settlement Method or specify as applicable a Specified Dollar Amount shall not constitute a Default or Event of Default under the ~~Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its option~~Indenture. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 40 consecutive Trading Days during the related Observation Period; and (C) if the Company elects ~~(or is deemed to have elected)~~ to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 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~~Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or (if applicable), the Daily Conversion ~~Values, as the case may be,~~ Values (if applicable) and the amount of cash payable in lieu of delivering any fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~11.02(h~~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~~ facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable 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 ~~11.02(h~~14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 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 ~~12.03~~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~~, 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 ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the second Business Day immediately following the last Trading Day of the relevant Observation Period, in the case of any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to a converting ~~Holders~~Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be entitled, in ~~certificate form or in~~ book-entry ~~format~~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 (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 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 ~~11.04~~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 1114. (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, unless a Holder converts after the close of business on a Record Date for an interest payment but on or prior to the corresponding Interest Payment Date, a Holder shall ~~not~~ receive ~~any separate~~ a cash payment ~~for accrued and unpaid interest, if any, except as set forth below, and the Company shall not adjust the Conversion Rate to adjust for any~~ representing accrued and unpaid interest on to but excluding the ~~Notes~~Conversion Date. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the ~~Note and accrued and unpaid interest,~~ Note. if any, to, but ~~excluding~~not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and Common Shares, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable, on such Interest Payment Date, on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a 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 (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts exist at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name ~~the~~ any shares of Common ~~Shares~~ Stock shall be issuable upon conversion shall be treated as a stockholder of record of such shares of Common Stock as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common ~~Shares~~ Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of ~~Common Shares~~ shares, if any, that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional ~~Common Shares~~ shares remaining after such computation shall be paid in cash. (k) Notwithstanding anything to the contrary herein, no Holder shall be entitled to receive shares of Common Stock upon conversion to the extent (but only to the extent) that such receipt would cause such converting Holder to become, directly or indirectly, a “beneficial owner” (within the meaning of Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) of more than 5.0% of the shares of Common Stock outstanding at such time (the “Limitation”). Any purported delivery of shares of Common Stock upon conversion of Notes shall be void and have no effect to the extent (but only to the extent) that such delivery would result in the converting Holder becoming the beneficial owner of more than the Limitation. If any delivery of shares of Common Stock owed to a Holder upon conversion of Notes is not made, in whole or in part, as a result of the Limitation, the Company’s obligation to make such delivery shall not be extinguished and the Company shall deliver such shares as promptly as practicable after any such converting Holder gives the Company notice that such delivery would not result in it being the beneficial owner of more than 5.0% of the shares of Common Stock outstanding at such time. The Limitation shall no longer apply following the effective date of any Fundamental Change. The Trustee shall have no obligation to monitor any Holder or beneficial owner’s compliance with the Limitation.

Appears in 1 contract

Sources: Sixth Supplemental Indenture (Capital Southwest Corp)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~13.02, Section ~~11.03(b~~13.03(b) and Section ~~11.07(a~~13.07(a), upon conversion of any Note, 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, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, ~~together with cash~~together, if applicable, with cash in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with ~~subsection (j~~Section 13.02(j) ~~of this Section 11.02~~ (“Physical Settlement”) ), or a combination of cash and shares of Common ~~Shares~~Stock, ~~together with cash~~together, if applicable, with cash in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with ~~subsection (j~~Section 13.02(j) ~~of this Section 11.02~~ (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~13.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~September~~ the date of the Company’s issuance of a Redemption Notice with respect to any Notes and prior to the related Redemption Date, and all conversions for which the relevant Conversion Date occurs on or after March 1, ~~2025~~ 2023 shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice 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 ~~September~~ March 1, ~~2025~~2023, and except to the extent the Company elects Physical Settlement to apply pursuant to Section 13.01(b)(ii), the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion Date (or one of the ~~period~~ periods described in the third immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the ~~Company, through the Trustee,~~ Company shall deliver such Settlement Notice to converting Holders no later than the close of business on the ~~second~~ 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) on or after ~~September~~ the date of issuance of a Redemption Notice and prior to the related Redemption Date, in such Redemption Notice or (B) on or after March 1, ~~2025~~2023, no later than ~~September~~ the close of business on the Business Day immediately preceding March 1, ~~2025~~2023 or (y) for which the Company has irrevocably elected Physical Settlement pursuant to Section 13.01(b)(ii), in the related notice described therein). If the Company does not elect a Settlement Method with respect to any conversion prior to the deadline set forth in the immediately preceding sentence, ~~the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and~~ then the Company shall be deemed to have elected ~~Combination~~ the Default 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~~such conversion. Such Settlement ~~Notice~~ Notice, if provided, shall specify the relevant Settlement Method ~~and~~ and, in the case ~~of an election~~ of Combination Settlement, the ~~relevant Settlement Notice shall indicate the~~ applicable Specified Dollar ~~Amount per $1,000 principal amount of Notes~~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 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 ~~need~~ Company’s failure to ~~amend~~ so select a Settlement Method or Specified Dollar Amount when so permitted shall not constitute a Default or Event of Default under this ~~Second Supplemental~~ Indenture or the Notes~~, including pursuant~~ . By notice to ~~Section 9.02(i). However~~the Holders, the Company ~~may~~may change the Default Settlement Method to any permitted Settlement Method, ~~nonetheless~~except it may not change the Default Settlement Method during any Redemption Period (in respect of Notes converted with a Conversion Date occurring during such Redemption Period) or on or after March 1, ~~choose to execute such an amendment at its option~~2023 (in respect of Notes converted with a Conversion Date that occurs on or after March 1, 2023). (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall ~~be computed as follows: (A) if~~ have the ~~Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder~~ following meaning in respect of each $1,000 principal amount of Notes being ~~converted~~ converted: (A) if Physical Settlement applies to such conversion, a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion ~~Date~~Date for such conversion; (B) if ~~the Company elects~~ Cash Settlement applies to ~~satisfy its Conversion Obligation in respect of~~ such ~~conversion by Cash Settlement~~conversion, ~~the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted~~ cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 40 consecutive VWAP Trading Days during the related Observation Period; and (C) if ~~the Company elects (or is deemed~~ Combination Settlement applies to ~~have elected) to satisfy its Conversion Obligation in respect of~~ such ~~conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted~~conversion, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 40 consecutive VWAP Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company ~~promptly~~ as soon as reasonably practicable following the last day of the Observation Period. ~~Promptly after~~ Following such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common ~~Share~~Stock, if any, 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 the amount of cash payable in lieu of delivering fractional Common Shares~~same. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~13.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the 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 ~~11.02(h~~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 thereof) (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 ~~11.02(h~~13.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 13 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered 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 ~~12.03~~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~~, 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 11.03(b~~‎Section 13.03(b) and Section ~~11.07(a~~13.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if ~~the Company elects~~ Physical ~~Settlement~~Settlement applies, or on the second Business Day immediately following the last VWAP Trading Day of the Observation Period, ~~in the case of~~ if any other Settlement ~~Method~~Method applies; provided, however, that the Company shall settle on the Maturity Date (or, if the Maturity Date is not a Business Day, the immediately following Business Day) any conversions to which Physical Settlement applies and whose Conversion Date occurs on or after August 15, 2023. If any shares of Common ~~Shares~~ Stock are due to a converting ~~Holders~~Holder, the Company shall issue and deliver (or otherwise cause to be ~~issued, and deliver (if applicable~~delivered) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be entitled, in ~~certificate form or in~~ book-entry ~~format~~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 (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 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 ~~11.04~~13.04, no adjustment shall be made for dividends on any shares of Common ~~Shares~~ Stock issued upon the conversion of any Note as provided in this Article 1113. (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~~below in this Section 13.02(h), and the Company ~~shall~~ will not adjust the Conversion Rate ~~to adjust~~ for any accrued and unpaid interest on ~~the~~ 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 ~~excluding~~not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so converted; ~~provided~~ provided, however, that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a 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 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 (34) to the extent of any Defaulted Amounts, if any Defaulted Amounts ~~exist~~ exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record as of the close of business on the Regular Record Date immediately preceding the Maturity Date, or a Fundamental Change Repurchase Date or Redemption Date referred to above, shall receive the full interest payment due on the ~~Maturity~~ corresponding Interest Payment Date in cash regardless of whether their Notes have been converted following such Regular Record Date, and the converting Holder shall not be required to make a corresponding payment. (i) The Person in whose name ~~the~~ any shares of Common ~~Shares~~ Stock shall be issuable upon conversion shall be treated as a stockholder of record of such shares as of the close of business on the relevant Conversion Date (if ~~the Company elects~~ Physical Settlement applies to ~~satisfy the related Conversion Obligation by Physical Settlement~~such conversion) or as of the close of business on the last VWAP Trading Day of the relevant Observation Period (if ~~the Company elects (or is deemed~~ Combination Settlement applies to ~~have elected) to satisfy the related Conversion Obligation by Combination Settlement~~such conversion), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common ~~Shares~~ Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (or, if such conversion date is not a VWAP Trading Day, the immediately preceding VWAP Trading Day), in the case of Physical Settlement) , or based on the Daily VWAP for the last VWAP Trading Day of the relevant Observation ~~Period (~~Period, in the case of Combination Settlement). ~~For~~ Subject to any procedures or requirements of the applicable Depositary in the case of any Global Note, for each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of ~~Common Shares~~ shares that shall be ~~issued~~ deliverable upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional ~~Common Shares~~ shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Sources: Indenture (Cree Inc)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~14.02, Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), upon conversion of any Note, 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, cash (“Cash Settlement”), ~~Common Shares~~ADSs, together with cash, if applicable, in lieu of delivering any fractional ~~Common Shares~~ ADSs in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Physical Settlement”) or a combination of cash and ~~Common Shares~~ADSs, together with cash, if applicable, in lieu of delivering any fractional ~~Common Shares~~ ADS in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~14.02. (i) All conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Tax Redemption Notice with respect to the Notes and prior to the related Tax Redemption Date shall be settled using the same Settlement Method, and all conversions for which the relevant Conversion Date occurs on or after ~~September 1~~December 15, 2025 shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Tax Redemption Notice with respect to the Notes but prior to the related Tax Redemption Date, and any conversions for which the relevant Conversion Date occurs on or after ~~September 1~~December 15, 2025, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion Date (or one of the ~~period~~ periods described in the ~~third~~ fourth immediately succeeding set of parentheses, as 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, through~~ 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 ~~second~~ Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs (x) after the date of issuance of a Tax Redemption Notice with respect to the Notes and prior to the related Tax Redemption Date, in such Tax Redemption Notice or (y) on or after ~~September 1~~December 15, 2025, no later than ~~September 1~~December 15, 2025). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $US$1,000 principal amount of Notes shall be equal to $US$1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount 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. 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 need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its option. (iv) The cash, ~~Common Shares~~ ADSs or a combination of cash and ~~Common Shares~~ ADSs in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $US$1,000 principal amount of Notes being converted a number of ~~Common Shares~~ ADSs equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $US$1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 40 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, 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 50 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~~ADS, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) in writing of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional ~~Common Shares~~ADSs. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~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 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 ~~11.02(h~~14.02(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 thereof) (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 11.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered 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 12.03. 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 11.03(b) and Section 11.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any Common Shares are due to converting Holders, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of Common Shares to which such Holder shall be entitled, in certificate form or in book-entry format, 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 11.04, no adjustment shall be made for dividends on any Common Shares issued upon the conversion of any Note as provided in this Article 11. (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, and the Company shall not adjust the Conversion Rate to adjust for any accrued and unpaid interest on 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 excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and 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 such Interest Payment Date, on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a 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 (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts exist at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the Common Shares shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects (or is deemed to have elected) to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional Common Shares upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Common Shares issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of Common Shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional Common Shares remaining after such computation shall be paid in cash.in

Appears in 1 contract

Sources: Indenture (JOYY Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~14.02, Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), upon conversion of any Note, the Company shall ~~pay~~ satisfy its Conversion Obligation by paying or ~~deliver~~paying and delivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, either solely cash (“Cash Settlement”), ) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section 11.02 (“Physical Settlement”) or a combination of cash and Common Shares, together with cash, if applicable, in lieu of delivering any fractional Common Shares in accordance with subsection (j) of this Section 11.02 14.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~14.02. (i) All conversions of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period, and all conversions for which the relevant Conversion Date occurs on or after ~~September~~ March 1, ~~2025~~ 2028, shall be settled using the same Settlement Method. (ii) Except for any conversions of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period, and any conversions for which the relevant Conversion Date occurs on or after ~~September~~ March 1, ~~2025~~2028, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion Date (or any conversions of Called Notes for which the ~~period described in~~ relevant Conversion Date occurs during the ~~third immediately succeeding set of parentheses~~related Redemption Period, as or any conversions for which the ~~case may be~~relevant Conversion Date occurs on or after March 1, 2028), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the ~~Company, through the Trustee,~~ Company shall deliver such Settlement ~~Notice~~ 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 ~~second~~ Trading Day immediately following the relevant Conversion Date (or, in the case of (A) any conversions of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period, in the related Notice of Redemption or (B) any conversions of Notes for which the relevant Conversion Date occurs on or after ~~September~~ March 1, ~~2025~~2028, no later than ~~September~~ March 1, ~~2025~~2028). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect ~~Cash~~ a Settlement Method with respect to any conversion on such Conversion Date or ~~Physical Settlement~~ during such period, and the Company shall be deemed to have elected ~~Combination~~ the Default Settlement in Method with respect ~~of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal~~ to ~~$1,000~~such conversion. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount 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~~ Obligation, the related Specified Dollar Amount shall be at least equal to $1,000 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 timely elect a Settlement Method or specify as applicable a Specified Dollar Amount shall not constitute or give rise to a Default or an Event of Default under this Indenture. By notice to ~~Holders of the Notes~~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 ~~September~~ March 1, ~~2025~~2028. By notice to all Holders, the Company may, prior to March 1, 2028, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through a 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 ~~for all Conversion Dates occurring subsequent~~ or with an ability to ~~delivery~~ 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 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 ~~notice. Not later than three Business Days after providing notice to Holders~~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 ~~an irrevocable~~ such Specified Dollar Amount no later than the relevant deadline for election ~~with respect to the~~ of a specified Settlement Method as ~~described~~ set forth in the immediately preceding ~~sentence~~paragraph, or, if the Company ~~shall issue a Current Report on Form 8-K or press release or otherwise provide public disclosure~~ does not timely notify Holders, such Specified Dollar Amount will be the specific amount set forth in ~~a manner compliant with Regulation FD announcing that~~ 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. In no event may the Company ~~has made~~ elect Combination Settlement with a Specified Dollar Amount that is less than $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 ~~irrevocable election~~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~~made by the Company, will be effective without the need to amend this ~~Second Supplemental~~ Indenture or the Notes, including pursuant to Section ~~9.02(i~~10.01(m). However, the Company ~~may, nonetheless,~~ 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 either post the Default Settlement Method 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 successor form) that is filed with the Commission. (iv) The ~~cash~~cash or, ~~Common Shares or~~ if applicable, combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of Common Shares equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 60 consecutive Trading Days during the related Observation Period; and (CB) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 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~~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 the amount of cash payable in lieu of delivering any fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~11.02(h~~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~~ 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 ~~11.02(h~~14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 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 ~~12.03~~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~~, 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 ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), the Company shall pay or deliver, as the case may be, the consideration due ~~in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or~~ upon conversion to converting Holders on the second Business Day immediately following the last Trading Day of the Observation Period~~, in the case of any other Settlement Method~~. If any shares of Common ~~Shares~~ Stock are due to a converting ~~Holders~~Holder, the Company shall issue ~~or cause to be issued,~~ and deliver (if applicable) to (or cause the Conversion Agent or to issue and deliver (if applicable)) 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~~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 (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 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 ~~11.04~~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 1114. (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~~, and the Company shall not adjust the Conversion Rate to adjust for any accrued and unpaid interest on 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 ~~excluding~~not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes (to, but not including, such 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 such Interest Payment Date,~~ payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (34) to the extent of any Defaulted Amounts, if any Defaulted Amounts exist at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the Common Shares shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if If the Company elects (or is deemed to have elected) to satisfy the related Conversion Obligation by Combination Settlement), as the ~~case may be. Upon a conversion~~ Person in whose name the shares of ~~Notes, such Person~~ Common Stock shall ~~no longer~~ be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional Common Shares upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Common Shares issuable upon conversion ~~based on the Daily VWAP for the relevant Conversion Date (in the case~~ shall be treated as a shareholder of ~~Physical Settlement) or based on the Daily VWAP for~~ record as of the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of Common Shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional Common Shares remaining after such computation shall be paid in cash.releva

Appears in 1 contract

Sources: Indenture (World Kinect Corp)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~14.02, Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), upon conversion of any Note, the Company shall ~~pay~~ satisfy its Conversion Obligation by paying or ~~deliver~~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”), ) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section 11.02 (“Physical Settlement”) or a combination of cash and Common Shares, together with cash, if applicable, in lieu of delivering any fractional Common Shares in accordance with subsection (j) of this Section 11.02 14.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~14.02. (i) All conversions of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period, and all conversions for which the relevant Conversion Date occurs on or after ~~September~~ November 1, ~~2025~~ 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 the related Redemption Period, and any conversions for which the relevant Conversion Date occurs on or after ~~September~~ November 1, ~~2025~~2029, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion Date (or any conversions of Called Notes for which the ~~period described in~~ relevant Conversion Date occurs during the ~~third immediately succeeding set of parentheses~~related Redemption Period, as or any conversions for which the ~~case may be~~relevant Conversion Date occurs on or after November 1, 2029), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the ~~Company, through the Trustee,~~ 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 ~~second~~ Trading Day immediately following the relevant Conversion Date (or, in the case of (A) any conversions of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period, in the related Notice of Redemption or (B) any conversions of Notes for which the relevant Conversion Date occurs on or after ~~September~~ November 1, ~~2025~~2029, no later than ~~September~~ November 1, ~~2025~~2029). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect ~~Cash~~ a Settlement Method with respect to any conversion on such Conversion Date or ~~Physical Settlement~~ during such period, and the Company shall be deemed to have elected ~~Combination~~ the Default Settlement in Method with respect ~~of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal~~ to ~~$1,000~~such conversion. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount 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 timely elect a Settlement Method or specify as applicable a Specified Dollar Amount shall not constitute a Default under this Indenture. By notice to ~~Holders of the Notes~~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 ~~September~~ November 1, ~~2025~~2029. By notice to all Holders, the Company may, prior to November 1, 2029, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through a 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 ~~for all Conversion Dates occurring subsequent~~ or with an ability to ~~delivery~~ 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 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 ~~notice. Not later than three Business Days after providing notice to Holders~~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 ~~an irrevocable~~ such Specified Dollar Amount no later than the relevant deadline for election ~~with respect to the~~ of a specified Settlement Method as ~~described~~ set forth in the immediately preceding ~~sentence~~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 ~~issue a Current Report on Form 8-K~~ apply for all conversions of Notes with Conversion Dates occurring subsequent to delivery of such notice; provided, however, that no such change or ~~press release~~ election will affect any Settlement Method theretofore elected (or ~~otherwise provide public disclosure~~ deemed to be elected) with respect to any Note and in ~~a manner compliant with Regulation FD announcing that~~ no event may the Company ~~has made such irrevocable election~~elect Combination Settlement with a specified dollar amount that is less than $1,000 per $1,000 principal amount of Notes. For the avoidance of doubt, such an irrevocable election, if ~~made~~made by the Company, will be effective without the need to amend this ~~Second Supplemental~~ Indenture or the Notes, including pursuant to Section ~~9.02(i~~10.01(m). However, the Company ~~may, nonetheless,~~ may nonetheless choose to execute such an amendment at its option. If the Company changes the Default Settlement Method or if the Company irrevocably elects to fix the Settlement Method pursuant to this paragraph, then, concurrently with providing notice to Holders 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 current report on Form 8-K (or any successor form) that is filed with the Commission. (iv) The ~~cash~~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: (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 number of Common Shares equal to the Conversion Rate in effect on the Conversion Date;[reserved] (B) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 40 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 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~~Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or (if applicable), the Daily Conversion ~~Values, as the case may be,~~ Values (if applicable) and the amount of cash payable in lieu of delivering any fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~11.02(h~~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~~ facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable 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 ~~11.02(h~~14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 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 ~~12.03~~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~~, 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 ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the ~~relevant Conversion Date, if the Company elects Physical Settlement, or on the second Business Day immediately following the~~ last Trading Day of the Observation Period~~, in the case of any other Settlement Method~~. If any shares of Common ~~Shares~~ Stock are due to a converting ~~Holders~~Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be entitled, in ~~certificate~~ certificated form or in book-entry ~~format~~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 (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 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 ~~11.04~~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 1114. (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~~, and the Company shall not adjust the Conversion Rate to adjust for any accrued and unpaid interest on 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 ~~excluding~~not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of 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 such Interest Payment Date,~~ payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the close of business on the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption 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 (34) to the extent of any ~~Defaulted Amounts~~overdue interest, if any ~~Defaulted Amounts exist~~ overdue interest exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the shares of Common ~~Shares~~ Stock shall be issuable upon conversion shall be treated as a stockholder of record as of the ~~close~~ last Trading Day of ~~business on~~ the relevant ~~Conversion Date (~~Observation Period if the Company elects to satisfy the related Conversion Obligation by ~~Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects (or is deemed to have elected) to satisfy the related Conversion Obligation by~~ Combination Settlement~~), as the case may be~~. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Common Shares issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of Common Shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional Common Shares remaining after such computation shall be paid in cash.ins

Appears in 1 contract

Sources: Indenture (Terawulf Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~13.02, Section ~~11.03(b~~13.03(b) and Section ~~11.07(a~~13.07(a), upon conversion of any Note, 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, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, ~~together with cash~~together, if applicable, with cash in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with ~~subsection (j~~Section 13.02(j) ~~of this Section 11.02~~ (“Physical Settlement”) ), or a combination of cash and shares of Common ~~Shares~~Stock, ~~together with cash~~together, if applicable, with cash in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with ~~subsection (j~~Section 13.02(j) ~~of this Section 11.02~~ (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~13.02. (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 ~~September~~ April 1, ~~2025~~ 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 ~~September~~ April 1, ~~2025~~2023, and except to the extent the Company elects Physical Settlement to apply pursuant to Section 13.01(b)(ii), the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion Date (or one of the ~~period~~ periods described in the third immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the ~~Company, through the Trustee,~~ Company shall deliver such Settlement Notice to converting Holders no later than the close of business on the ~~second~~ Scheduled 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 a Redemption Period, in the applicable Redemption Notice or (B) on or after ~~September~~ April 1, ~~2025~~2023, no later than ~~September~~ the close of business on the Business Day immediately preceding April 1, ~~2025~~2023 or (y) for which the Company has irrevocably elected Physical Settlement pursuant to Section 13.01(b)(ii), in the related notice described therein). If the Company does not elect a Settlement Method with respect to any conversion prior to the deadline set forth in the immediately preceding sentence, ~~the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and~~ then the Company shall be deemed to have elected ~~Combination~~ the Default 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~~such conversion. Such Settlement ~~Notice~~ Notice, if provided, shall specify the relevant Settlement Method ~~and~~ and, in the case ~~of an election~~ of Combination Settlement, the ~~relevant Settlement Notice shall indicate the~~ applicable Specified Dollar ~~Amount per $1,000 principal amount of Notes~~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 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 ~~need~~ Company’s failure to ~~amend~~ so select a Settlement Method or Specified Dollar Amount when so permitted shall not constitute a Default or Event of Default under this ~~Second Supplemental~~ Indenture or the Notes~~, including pursuant~~ . By notice to ~~Section 9.02(i). However~~the Holders, the Company ~~may~~may change the Default Settlement Method to any permitted Settlement Method, ~~nonetheless~~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 April 1, ~~choose to execute such an amendment at its option~~2023 (in respect of Notes converted with a Conversion Date that occurs on or after April 1, 2023). (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall ~~be computed as follows: (A) if~~ have the ~~Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder~~ following meaning in respect of each $1,000 principal amount of Notes being ~~converted~~ converted: (A) if Physical Settlement applies to such conversion, a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion ~~Date~~Date for such conversion; (B) if ~~the Company elects~~ Cash Settlement applies to ~~satisfy its Conversion Obligation in respect of~~ such ~~conversion by Cash Settlement~~conversion, ~~the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted~~ cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 30 consecutive VWAP Trading Days during the related Observation Period; and (C) if ~~the Company elects (or is deemed~~ Combination Settlement applies to ~~have elected) to satisfy its Conversion Obligation in respect of~~ such ~~conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted~~conversion, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 30 consecutive VWAP Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company ~~promptly~~ as soon as reasonably practicable following the last day of the Observation Period. ~~Promptly after~~ Following such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common ~~Share~~Stock, if any, 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 the amount of cash payable in lieu of delivering fractional Common Shares~~same. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~13.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time ~~and, if required,~~ and pay funds equal to interest payable on the next Interest Payment Date to which ~~such~~ the Holder is not entitled as set forth in Section ~~11.02(h~~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~~ facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedure of the Depository or a notice 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~~ the Holder is not entitled as set forth in Section ~~11.02(h~~13.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 13 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered 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 ~~12.03~~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~~, 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 ~~11.03(b~~13.03(b) and Section ~~11.07(a~~13.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if ~~the Company elects~~ Physical ~~Settlement~~Settlement applies, or on the second Business Day immediately following the last VWAP Trading Day of the Observation Period, ~~in the case of~~ if any other Settlement ~~Method~~Method applies; provided, however, that the Company shall settle on the Maturity Date (or, if the Maturity Date is not a Business Day, the immediately following Business Day) any conversions to which Physical Settlement applies and whose Conversion Date occurs on or after September 15, 2023. If any shares of Common ~~Shares~~ Stock are due to a converting ~~Holders~~Holder, the Company shall issue and deliver (or otherwise cause to be ~~issued, and deliver (if applicable~~delivered) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be entitled, in ~~certificate form or in~~ book-entry ~~format~~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 (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 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 ~~11.04~~13.04, no adjustment shall be made for dividends on any shares of Common ~~Shares~~ Stock issued upon the conversion of any Note as provided in this Article 1113. (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~~below in this Section 13.02(h), and the Company ~~shall~~ will not adjust the Conversion Rate ~~to adjust~~ for any accrued and unpaid interest on ~~the~~ 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 ~~excluding~~not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so converted; ~~provided~~ provided, however, that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a 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 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 (34) to the extent of any Defaulted Amounts, if any Defaulted Amounts ~~exist~~ exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record as of the close of business on the Regular Record Date immediately preceding the Maturity Date, or a Fundamental Change Repurchase Date or Redemption Date referred to above, shall receive the full interest payment due on the ~~Maturity~~ corresponding Interest Payment Date in cash regardless of whether their Notes have been converted following such Regular Record Date, and the converting Holder shall not be required to make a corresponding payment. (i) The Person in whose name ~~the~~ any shares of Common ~~Shares~~ Stock shall be issuable upon conversion shall be treated as a stockholder of record of such shares as of the close of business on the relevant Conversion Date (if ~~the Company elects~~ Physical Settlement applies to ~~satisfy the related Conversion Obligation by Physical Settlement~~such conversion) or as of the close of business on the last VWAP Trading Day of the relevant Observation Period (if ~~the Company elects (or is deemed~~ Combination Settlement applies to ~~have elected) to satisfy the related Conversion Obligation by Combination Settlement~~such conversion), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common ~~Shares~~ Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (or, if such conversion date is not a VWAP Trading Day, the immediately preceding VWAP Trading Day), in the case of Physical Settlement) , or based on the Daily VWAP for the last VWAP Trading Day of the relevant Observation ~~Period (~~Period, in the case of Combination Settlement). ~~For~~ Subject to any procedures or requirements of the applicable Depositary in the case of any Global Note, for each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of ~~Common Shares~~ shares that shall be ~~issued~~ deliverable upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional ~~Common Shares~~ shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Sources: Indenture (Tilray, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~14.02, Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), upon conversion of any Note, the Company shall ~~pay~~ satisfy its Conversion Obligation by paying or ~~deliver~~delivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~14.02. (i) All conversions for which the relevant Conversion ~~Date~~ Dates occurs (x) on or after ~~September 1~~November 15, 2025 shall be settled using the same Settlement Method or (y) during a Redemption Period shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs during a Redemption Period and any conversions for which the relevant Conversion Date occurs on or after ~~September 1~~November 15, 2025, 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 ~~the period described~~ in the ~~third immediately succeeding set~~ case of ~~parentheses~~any conversions occurring (x) during a Redemption Period or (y) on or after November 15, ~~as the case may be~~2025), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the ~~Company, through the Trustee,~~ 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 ~~second~~ Scheduled Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions ~~for which the relevant Conversion Date occurs~~ occurring (x) during a Redemption Period, in such Redemption Notice, or (y) on or after ~~September 1~~November 15, 2025, no later than ~~September 1~~the close of business on Scheduled Trading Day immediately preceding November 15, 2025) (in each case, the “Settlement Method Election Deadline”). If the Company does not timely elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement for such Conversion Date or during such period and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. 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 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 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~~Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to ~~September 1~~November 15, 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 at least $1,000 for all Conversion Dates occurring subsequent to delivery of such notice. ~~Not later than three Business Days~~ 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 ~~providing notice to Holders~~the date of such election, inform Holders converting their Notes, the Trustee and the Conversion Agent (if other than the Trustee) of an 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 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 electionany Note. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this ~~Second Supplemental~~ Indenture or the Notes, including pursuant to Section ~~9.02(i~~10.01(l). However, the Company ~~may, nonetheless,~~ 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)(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 successor form) that is filed with the Commission. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (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 number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 40 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 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~~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 the amount of cash payable in lieu of delivering fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~11.02(h~~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~~ facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable 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 ~~11.02(h~~14.02(h). The Trustee (~~and~~ and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 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 ~~12.03~~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~~, 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 11.03(b~~‎Section 14.03(b) and Section ~~11.07(a~~14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the second Business Day immediately following the last Trading Day of the relevant Observation Period, in the case of any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to a converting ~~Holders~~Holder, the Company shall issue or cause to be issued, and deliver ~~(if applicable)~~ to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, 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 certificate form or in book-entry format,~~ entitled 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 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 ~~11.04~~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 1114. (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~~, and the Company shall not adjust the Conversion Rate to adjust for any accrued and unpaid interest on 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 excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a 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 (34) to the extent of any Defaulted Amounts, if any Defaulted Amounts ~~exist~~ 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, ay 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 the certificate for any shares of Common ~~Shares shall be issuable~~ Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Common Shares issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of Common Shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional Common Shares remaining after such computation shall be paid in cash.Notes

Appears in 1 contract

Sources: Indenture (fuboTV Inc. /FL)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~14.02, Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), upon conversion of any Note, the Company shall ~~pay~~ satisfy its Conversion Obligation by paying or ~~deliver~~delivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~14.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~September 1~~the date of the Company’s issuance of a Notice of Redemption 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, ~~2025~~ and all conversions for which the relevant Conversion Date occurs on or after December 2, 2030, shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs after the date of the Company’s issuance of a Notice of Redemption 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 ~~September 1~~December 2, ~~2025~~2030, 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 conversions for which the ~~period described~~ relevant Conversion Date occurs after the Company’s issuance of a Notice of Redemption 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 ~~third immediately succeeding set of parentheses~~relevant Conversion Date occurs on or after December 2, ~~as the case may be~~2030), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the ~~Company, through the Trustee,~~ 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 ~~second~~ Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions (x) for which the relevant Conversion Date occurs (1) after the date of issuance of a Notice of Redemption with respect to the Notes and 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, 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 ~~September 1~~December 2, ~~2025~~2030, no later than ~~September 1~~December 2, ~~2025~~2030 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 prior to the deadline set forth in the immediately preceding ~~sentence~~sentence with respect to any conversion, ~~the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and~~ the Company shall be deemed to have elected ~~Combination~~ the Default Settlement in Method with respect ~~of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal~~ to ~~$1,000~~such conversion. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount 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 need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such 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: (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 number of Common Shares equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, 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 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, 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 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 11.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the 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 11.02(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 thereof) (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 11.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered 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 12.03. 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 11.03(b) and Section 11.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any Common Shares are due to converting Holders, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of Common Shares to which such Holder shall be entitled, in certificate form or in book-entry format, 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 11.04, no adjustment shall be made for dividends on any Common Shares issued upon the conversion of any Note as provided in this Article 11. (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, and the Company shall not adjust the Conversion Rate to adjust for any accrued and unpaid interest on 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 excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and 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 such Interest Payment Date, on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a 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 (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts exist at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the Common Shares shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects (or is deemed to have elected) to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional Common Shares upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Common Shares issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of Common Shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional Common 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 ~~11.02~~14.02, Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), upon conversion of any Note, the Company ~~shall~~ shall, at its election, pay or deliver, as the case may be, to the converting Holder, in ~~respect~~ full satisfaction of ~~each $1,000 principal amount of Notes being converted~~its Conversion Obligation, cash (“Cash Settlement”), shares of the Common ~~Shares, together with cash, if applicable, in lieu of delivering any fractional Common Shares in accordance with subsection (j) of this Section 11.02~~ Stock (“Physical Settlement”) or a combination of cash and shares of the Common ~~Shares, together with cash, if applicable, in lieu of delivering any fractional Common Shares in accordance with subsection (j) of this Section 11.02~~ Stock (“Combination Settlement”), ~~at its election,~~ as set forth in this Section ~~11.02~~14.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~September 1~~July 15, ~~2025~~ 2023 shall be settled using the same Settlement ~~Method.~~ Method (iiincluding the same relative proportion of cash and/or shares of the Common Stock) as all other conversions for which the relevant Conversion Date occurring on or after July 15, 2023. Except for any conversions for which the relevant Conversion Date occurs on or after ~~September 1~~July 15, ~~2025~~2023, the Company shall use the same Settlement Method (including the same relative proportion of cash and/or shares of the Common Stock) for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (~~iii~~ii) ~~If, in respect of any Conversion Date (or~~ If the ~~period described in the third immediately succeeding set of parentheses, as the case may be)~~Company elects a Settlement Method, the Company ~~elects~~ shall deliver notice to ~~deliver a notice (~~Holders through the ~~“Settlement Notice”)~~ Conversion Agent of ~~the relevant~~ such Settlement Method ~~in respect of such Conversion Date (or such period, as~~ the ~~case may be), the Company, through the Trustee, shall deliver such Settlement Notice to converting Holders~~ Company has selected no later than the close of business on the ~~second~~ Trading Day immediately following the ~~relevant~~ related Conversion Date (~~or,~~ or in the case of any conversions for which the relevant Conversion Date occurs on or after ~~September 1~~July 15, ~~2025~~2023, no later than ~~September 1~~July 15, ~~2025~~2023). If the Company does not timely elect a Settlement ~~Method prior to the deadline set forth in the immediately preceding sentence~~Method, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to that Conversion Date and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. ~~Such~~ If the Company has timely elected Combination Settlement ~~Notice shall specify~~ in respect of any conversion but does not timely notify the ~~relevant Settlement Method and in the case~~ Conversion Agent of ~~an election of Combination Settlement, the relevant Settlement Notice shall indicate~~ the Specified Dollar Amount per $1,000 principal amount of Notes~~. If~~ , or the Company ~~delivers a Settlement Notice electing~~ 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 in such Settlement Notice~~Settlement, 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 need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such 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: (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 number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate ~~in effect~~ on the Conversion ~~Date~~Date (plus cash in lieu of any fractional share of Common Stock issuable upon conversion); (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 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, 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 50 20 consecutive VWAP Trading Days during the related Observation ~~Period~~Period (plus cash in lieu of any fractional share of Common Stock issuable upon conversion). 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 hereby) so surrendered. (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~~ 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~~ and, if applicable, the amount of cash payable in lieu of ~~delivering~~ any fractional share of Common ~~Share~~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~~ and, if applicable, the amount of cash payable in lieu of ~~delivering~~ fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (bi) ~~Subject to Section 11.02(e~~To convert a beneficial interest in a Global Note (which conversion is irrevocable), ~~before any Holder~~ the holder of ~~a Note shall be entitled to convert a Note as set forth above,~~ such ~~Holder shall~~ beneficial interest must: (iA) ~~in the case of a Global Note,~~ comply with the ~~procedures of the Depositary in effect at that time and,~~ 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 ~~11.02(h) and~~ 14.02(g); and (ii) in To convert a Certificated Note, the ~~case of a Physical Note~~ Holder must: (1A) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile thereof) (a “Notice of Conversion”) ~~at the office of the Conversion Agent~~ and ~~state in writing therein the principal amount of Notes~~ such Note 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, ; (3B) if required, furnish appropriate endorsements and transfer ~~documents and~~ documents; (4C) 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 ~~11.02(h~~14.02(g). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 14 on the Conversion Date for such ~~conversion~~conversion not later than the next Business Day after the Conversion Date. ~~No Notice of Conversion with respect to any Notes may be surrendered by~~ If a Holder ~~thereof if such Holder~~ has ~~also~~ already delivered a Fundamental Change Repurchase Notice with respect to ~~the Company in respect of~~ a Note, such ~~Notes and~~ Holder may not surrender such Note for conversion until such Holder has ~~not~~ validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 12.03. 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~~or, in the case of a Global ~~Notes~~Note, has complied with the Applicable Procedures with respect to such a withdrawal) in accordance with the ~~rules~~ 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 ~~applicable Depositary~~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 (b~~Section 14.02(b) above. ~~Except as set forth in~~ Subject to the provisions of Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), the Company shall pay or deliver, as the case may be, the ~~consideration~~ Settlement Amount due in respect of the Conversion Obligation on on: (i) the ~~second~~ third Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement~~, or on~~ ; or (ii) the ~~second~~ third Business Day immediately following the last VWAP Trading Day of the relevant Observation Period, in if the ~~case of any other~~ Company elects Cash Settlement ~~Method~~or if the Company elects or is deemed to elect Combination Settlement. If any shares of Common ~~Shares~~ Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver ~~(if applicable) to the Conversion Agent or~~ to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary, as the case may be, for the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be ~~entitled, in certificate form or in book-entry format,~~ 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 (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~~ issuance of any shares of Common ~~Shares~~ Stock upon ~~conversion~~conversion of such Note, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common ~~Shares~~ Stock being issued in a name other than the Holder’s name until the 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 11.04, no adjustment shall be made for dividends on any Common Shares issued upon the conversion of any Note as provided in this Article 11. (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 ~~conversion~~conversion of a Note, a the converting Holder shall not receive any separate cash payment ~~for~~ representing accrued and unpaid interest, if any, except as set forth in the paragraph below~~, and the Company shall not adjust the Conversion Rate to adjust for any accrued and unpaid interest on the Notes~~. 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 ~~excluding~~not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~not including, the relevant Conversion Date shall be deemed to be paid in full rather than ~~cancelled~~canceled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common ~~Shares~~Stock, accrued and unpaid interest ~~will~~ shall be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the ~~foregoing~~immediately preceding paragraph, if Notes are converted after the close of business on a Regular Record Date for the payment of interest, 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 receive~~ shall receive, on the earlier of the corresponding Interest Payment Date and the date the Company delivers the consideration due in respect of such conversion, 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 such Interest Payment Date,~~ payable on the Notes so ~~converted~~converted on the corresponding Interest Payment Date (regardless of whether the converting Holder was the Holder of record on the corresponding Regular Record Date); provided that no such payment ~~shall~~ need be ~~required~~ made: (1i) if the Notes are surrendered for ~~conversions~~ conversion following the Regular Record Date immediately preceding the Maturity Date; ; (2ii) if the Company has specified a 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 (3iii) to the extent of any ~~Defaulted Amounts~~overdue interest, if any ~~Defaulted Amounts exist~~ overdue interest exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date regardless of whether their Notes have been converted following such Regular Record DateNotes. (i) The Person in whose name the Common Shares shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects (or is deemed to have elected) to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional Common Shares upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Common Shares issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of Common Shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional Common Shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Sources: Indenture (On Semiconductor Corp)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~14.02, Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), upon conversion of any Note, the Company shall ~~pay~~ satisfy its Conversion Obligation by paying or ~~deliver~~delivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~14.02. (i) All conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Notice of Redemption with respect to the Notes and prior to the related Redemption Date shall be settled using the same Settlement Method, and all conversions for which the relevant Conversion Date occurs on or after ~~September~~ April 1, ~~2025~~ 2025, shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Notice of Redemption with respect to the Notes but prior to the related Redemption Date, and any conversions for which the relevant Conversion Date occurs on or after ~~September~~ April 1, 2025, 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 conversions for which the ~~period~~ relevant Conversion Date occurs after the Company’s issuance of a Notice of Redemption with respect to the Notes and prior to the related Redemption Date, or for which the relevant Conversion Date occurs on or after April 1, 2025 or for which the Company has irrevocably elected Physical Settlement pursuant to ‎Section 14.01(b)(ii) in a notice as described in ~~the third immediately succeeding set of parentheses, as the case may be~~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, 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 (A) for which the relevant Conversion Date occurs (x) after the date of issuance of a Notice of Redemption with respect to the Notes and prior to the related Redemption Date, in such Notice of Redemption or (y) on or after ~~September~~ April 1, 2025, no later than ~~September~~ April 1, ~~2025~~2025 or (B) 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 prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to any conversion on such Conversion Date or during such period, and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. 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 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)~~all Holders, the Company may, prior to ~~September~~ April 1, 2025, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through a 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 through the Trustee 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~~. Not later than three Business Days after providing notice~~ ; provided, however, that no such election will affect any Settlement Method theretofore elected (or deemed to ~~Holders, the Trustee and the Conversion Agent (if other than the Trustee~~be elected) ~~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 electionany Note. For the avoidance of doubt, such an irrevocable election, if ~~made~~made by the Company, will be effective without the need to amend this ~~Second Supplemental~~ Indenture or the Notes, including pursuant to ~~Section 9.02(i~~‎‎Section 10.01(m). However, the Company ~~may, nonetheless,~~ may nonetheless choose to execute such an amendment at its option. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 40 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination ~~Settlement~~▇▇▇▇▇▇▇▇▇▇, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 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~~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 the amount of cash payable in lieu of delivering fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~11.02(h~~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~~ 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 ~~11.02(h~~14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 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 ~~12.03~~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~~, 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 11.03(b~~‎Section 14.03(b) and Section ~~11.07(a~~14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical ~~Settlement~~Settlement (provided that, with respect to any Conversion Date following the Regular Record Date immediately preceding the Maturity Date where Physical Settlement applies to the related conversion, the Company shall settle any such conversion on the Maturity Date), or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to a converting ~~Holders~~Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be entitled, in ~~certificate form or in~~ book-entry ~~format~~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 (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 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 ~~11.04~~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 1114. (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~~, and the Company shall not adjust the Conversion Rate to adjust for any accrued and unpaid interest on 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 ~~excluding~~not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (34) to the extent of any Defaulted Amounts, if any Defaulted Amounts ~~exist~~ exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the shares of Common ~~Shares~~ Stock shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects (or is deemed to have elected) to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional Common Shares upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Common Shares issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of Common Shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional Common Shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Sources: Indenture (PagerDuty, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~14.02, Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), upon conversion of any Note, 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, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~14.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~September~~ July 1, ~~2025~~ 2025, 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 the second Scheduled Trading Day immediately preceding the related Redemption Date, shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Notice of Redemption with respect to 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 ~~September~~ July 1, 2025, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion Date (or the period described in the third immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the 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 for which the relevant Conversion Date occurs (x) after the date of issuance of a Notice of Redemption with respect to the Notes and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date, in such Notice of Redemption or (y) on or after ~~September~~ July 1, 2025, no later than ~~September~~ July 1, 2025) (in each case, the “Settlement Method Election Deadline”). If the Company does not elect a Settlement Method in respect of any conversion on such Conversion Date (or during such period, as the case may be) prior to the ~~deadline set forth in the immediately preceding sentence~~relevant Settlement Method Election Deadline, the Company shall no longer have the right to elect ~~Cash~~ a Settlement ~~or Physical Settlement~~ Method and the Company shall be deemed to have elected ~~Combination~~ the Default Settlement in Method with respect ~~of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal~~ to ~~$1,000~~such conversion. ~~Such~~ Any Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company ~~delivers a Settlement Notice electing~~ timely elects Combination Settlement in with respect ~~of its Conversion Obligation~~ to a conversion but does not ~~indicate a~~ timely notify the converting Holder through the Trustee of the applicable Specified Dollar Amount, then the Specified Dollar Amount for such conversion shall be deemed to be $1,000 per $1,000 principal amount of ~~Notes in such Settlement Notice~~Notes. For the avoidance of doubt, the Company’s failure to timely elect a Settlement Method or specify the applicable Specified Dollar Amount ~~per $1,000 principal amount of Notes~~ shall ~~be deemed to be $1,000~~not constitute a default under this Indenture. ~~By notice to Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee), the~~ The Company may, by notice to the Holders through the Trustee prior to ~~September~~ July 1, 2025, ~~at its option~~irrevocably fix the Settlement Method to any Settlement Method that the Company is then permitted to elect, ~~irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through a~~ including Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 ~~for~~ 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 ~~Dates occurring subsequent to delivery of~~ Date that is on or after the date the Company sends such notice. ~~Not~~ 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 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 ~~three Business Days after~~ 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 ~~Holders,~~ all Holders through the Trustee ~~and~~ of such change in the ~~Conversion Agent (if other than the Trustee) of an irrevocable~~ Default Settlement Method or election ~~with respect~~ to irrevocably fix the Settlement ~~Method as described in the immediately preceding sentence~~Method, the Company shall ~~issue~~ promptly file a ~~Current Report~~ report on Form 8-K or issue a press release ~~or otherwise provide public disclosure in a manner compliant with Regulation FD~~ 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~~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~~election of the Settlement Method, if made, ~~will~~ shall be effective without the need to amend this ~~Second Supplemental~~ Indenture or the Notes, including pursuant to the provisions described in Section ~~9.02(i~~10.01(l). However, the Company ~~may, nonetheless,~~ may nonetheless choose to execute such an amendment at ~~its~~ 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: (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 number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 25 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, 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 50 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~~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 the amount of cash payable in lieu of delivering fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~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 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 ~~11.02(h~~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 thereof) (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 ~~11.02(h~~14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered 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 ~~12.03~~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~~, 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 ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be entitled, in certificate form or in book-entry format, 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 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 ~~11.04~~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 1114. (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~~, and the Company shall not adjust the Conversion Rate to adjust for any accrued and unpaid interest on 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 ~~excluding~~not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so converted; provided that no such payment shall be required (1) for conversions ~~following~~ after the close of business on the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a 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 Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading Day immediately following the corresponding Interest Payment Date; or (34) to the extent of any Defaulted Amounts, if any Defaulted Amounts ~~exist~~ exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all applicable Holders of record at the close of business on the Regular Record Date immediately preceding the Maturity Date or any Redemption Date shall receive the full interest payment due on the Maturity Date or any Redemption Date, as the case may be, regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name ~~the~~ any shares of Common ~~Shares~~ Stock shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects (or is deemed to have elected) to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional Common Shares upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Common Shares issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of Common Shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional Common Shares remaining after such computation shall be paid in cash.co

Appears in 1 contract

Sources: Indenture (Wayfair Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~13.02, Section ~~11.03(b~~13.03(b) and Section ~~11.07(a~~13.07(a), upon conversion of any Note, 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, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, ~~together with cash~~together, if applicable, with cash in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with ~~subsection (j~~Section 13.02(j) ~~of this Section 11.02~~ (“Physical Settlement”) ), or a combination of cash and shares of Common ~~Shares~~Stock, ~~together with cash~~together, if applicable, with cash in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with ~~subsection (j~~Section 13.02(j) ~~of this Section 11.02~~ (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~13.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~September~~ the date of the Company’s issuance of a Redemption Notice with respect to any Notes and prior to the related Redemption Date, and all conversions for which the relevant Conversion Date occurs on or after June 1, ~~2025~~ 2029, shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption 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 ~~September~~ June 1, ~~2025~~2029, 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 one of the ~~period~~ periods described in the third immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the ~~Company, through the Trustee,~~ Company 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 (x) of any Notes for which the relevant Conversion Date occurs (A) on or after ~~September~~ the date of issuance of a Redemption Notice and prior to the related Redemption Date, in such Redemption Notice or (B) on or after June 1, ~~2025~~2029, no later than ~~September~~ the close of business on the Business Day immediately preceding June 1, ~~2025~~2029, (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, ~~the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and~~ then the Company shall be deemed to have elected ~~Combination~~ the Default 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~~such conversion. Such Settlement ~~Notice~~ Notice, if provided, shall specify the relevant Settlement Method ~~and~~ and, in the case ~~of an election~~ of Combination Settlement, the ~~relevant Settlement Notice shall indicate the~~ applicable Specified Dollar ~~Amount per $1,000 principal amount of Notes~~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 in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. By For the avoidance of doubt, the Company’s failure to so select a Settlement Method or Specified Dollar Amount when so permitted shall not constitute a Default or Event of Default under this Indenture or the Notes. Subject to Section 13.02(a)(iv), by notice to the Holders ~~of the Notes,~~ (with a copy to the Trustee and the Conversion ~~Agent (if other than the Trustee~~Agent), the Company may change the Default Settlement Method to any permitted Settlement Method. In addition, subject to Section 13.02(a)(iv), (A) the Company may, ~~prior to September 1, 2025, at its option, irrevocably elect to satisfy its Conversion Obligation with respect~~ by notice to the ~~Notes through a Combination Settlement~~ Holders (with a ~~Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 for all Conversion Dates occurring subsequent~~ copy to ~~delivery of such notice. Not later than three Business Days after providing notice to Holders,~~ the Trustee and the Conversion ~~Agent~~ Agent), irrevocably elect to either (~~if other than the Trustee~~x) ~~of an irrevocable election with respect to~~ fix 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 to any Settlement Method that the Company ~~has made~~ 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~~Irrevocable Election to the Holders. For the avoidance of doubt, ~~such an irrevocable election~~any Irrevocable Election, if made, will be effective without the need to amend this ~~Second Supplemental~~ Indenture or the Notes, including pursuant to Section ~~9.02(i~~10.01(i). However, the Company ~~may, nonetheless,~~ 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 June 1, 2029 (in respect of Notes converted with a Conversion Date that occurs on or after June 1, 2029). (v) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall ~~be computed as follows: (A) if~~ have the ~~Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder~~ following meaning in respect of each $1,000 principal amount of Notes being ~~converted~~ converted: (A) if Physical Settlement applies to such conversion, a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion ~~Date~~Date for such conversion; (B) if ~~the Company elects~~ Cash Settlement applies to ~~satisfy its Conversion Obligation in respect of~~ such ~~conversion by Cash Settlement~~conversion, ~~the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted~~ cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 40 consecutive VWAP Trading Days during the related Observation Period; and (C) if ~~the Company elects (or is deemed~~ Combination Settlement applies to ~~have elected) to satisfy its Conversion Obligation in respect of~~ such ~~conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted~~conversion, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 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 ~~Share~~Stock, if any, 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 the amount of cash payable in lieu of delivering fractional Common Shares~~same. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~13.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the 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 ~~11.02(h~~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 thereof) (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 ~~11.02(h~~13.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 13 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered 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 ~~12.03~~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~~, 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 ~~11.03(b~~13.03(b) and Section ~~11.07(a~~13.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if ~~the Company elects~~ Physical ~~Settlement~~Settlement applies, or on the second Business Day immediately following the last VWAP Trading Day of the Observation Period, ~~in the case of~~ if any other Settlement ~~Method~~Method applies; provided, however, that the Company shall settle on the Maturity Date (or, if the Maturity Date is not a Business Day, the immediately following Business Day) any conversions to which Physical Settlement applies and whose Conversion Date occurs on or after November 15, 2029. If any shares of Common ~~Shares~~ Stock are due to a converting ~~Holders~~Holder, the Company shall issue and deliver (or otherwise cause to be ~~issued, and deliver (if applicable~~delivered) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be entitled, in ~~certificate form or in~~ book-entry ~~format~~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 (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 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 ~~11.04~~13.04, no adjustment shall be made for dividends on any shares of Common ~~Shares~~ Stock issued upon the conversion of any Note as provided in this Article 1113. (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~~below in this Section 13.02(h), and the Company ~~shall~~ will not adjust the Conversion Rate ~~to adjust~~ for any accrued and unpaid interest on ~~the~~ 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 ~~excluding~~not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so converted; ~~provided~~ provided, however, that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a 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 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 (34) to the extent of any Defaulted Amounts, if any Defaulted Amounts ~~exist~~ exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record as of the close of business on the Regular Record Date immediately preceding the Maturity Date, or a Fundamental Change Repurchase Date or Redemption Date referred to above, shall receive the full interest payment due on the ~~Maturity~~ corresponding Interest Payment Date in cash regardless of whether their Notes have been converted following such Regular Record Date, and the converting Holder shall not be required to make a corresponding payment. (i) The Person in whose name ~~the~~ any shares of Common ~~Shares~~ Stock shall be issuable upon conversion shall be treated as a stockholder of record of such shares as of the close of business on the relevant Conversion Date (if ~~the Company elects~~ Physical Settlement applies to ~~satisfy the related Conversion Obligation by Physical Settlement~~such conversion) or as of the close of business on the last VWAP Trading Day of the relevant Observation Period (if ~~the Company elects (or is deemed~~ Combination Settlement applies to ~~have elected) to satisfy the related Conversion Obligation by Combination Settlement~~such conversion), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common ~~Shares~~ Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (or, if such conversion date is not a VWAP Trading Day, the immediately preceding VWAP Trading Day), in the case of Physical Settlement) , or based on the Daily VWAP for the last VWAP Trading Day of the relevant Observation ~~Period (~~Period, in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of Common Shares that shall be issued upon conversion thereof shall be computed on the basis Subject to any procedures or requirements of the ~~aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional Common Shares remaining after such computation shall be paid in cash.~~applicable

Appears in 1 contract

Sources: Indenture (Wolfspeed, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) ~~Subject to this~~ Except as provided in Section ~~11.02, Section 11.03(b~~13.03(b) and Section ~~11.07(a~~13.07(a), upon conversion of any Note, 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,~~ cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 13.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 13.02 (“Combination Settlement”), at ~~its~~ the Company’s election, as ~~set forth in this Section 11.02~~the case may be, as described below. (i) All conversions ~~for which the relevant~~ with a Conversion Date ~~occurs~~ occurring on or after ~~September~~ July 1, ~~2025~~ 2025, shall be settled using the same Settlement Method~~. (ii) Except for any conversions for which the relevant~~ . For Conversion ~~Date occurs on or after September~~ Dates occurring prior to July 1, 2025, the Company shall use the same Settlement Method for all conversions ~~with~~ having the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions ~~with~~ having different Conversion Dates. However, notwithstanding anything to the contrary in this Section 13.02(a), (A) if the Company delivers a Physical Settlement upon Certain Distributions Notice, then the Company will settle all conversions with a Conversion Date occurring during the period covered by such notice by Physical Settlement; and (B) if the Company calls any Notes for Redemption, then (x) the Company will specify in the related Redemption Notice (and, in the case of a Redemption of less than all outstanding Notes, in a notice simultaneously sent to all holders of Notes not called for 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 Redemption Notice and on or before the second Business Day before the related Redemption Date; and (y) if the related Redemption Date is on or after July 1, 2025, then such Settlement Method set forth in the preceding clause (x) must be the same Settlement Method that applies to all conversions with a Conversion Date that occurs on or after July 1, 2025. (~~iii~~ii) ~~If, in respect of any Conversion Date (or~~ If the ~~period described in the third immediately succeeding set of parentheses, as the case may be)~~Company elects a Settlement Method, the Company ~~elects~~ shall inform converting Holders in writing, through the Trustee upon its receipt of a written instruction from the Company to ~~deliver a notice~~ send such notification, of the Settlement Method it has selected (the “Settlement Notice”) ~~of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the Trustee, shall deliver such Settlement Notice to converting Holders~~ no later than the close of business on the ~~second Trading~~ Business Day immediately following the ~~relevant~~ related Conversion Date (oror (x) in the Redemption Notice, if applicable, (y) in the Physical Settlement upon Certain Distributions Notice, if applicable, or (z) in the case of any conversions ~~for which the relevant~~ with a Conversion Date ~~occurs~~ occurring on or after ~~September~~ July 1, 2025, no later than ~~September~~ the close of business on the Business Day immediately preceding July 1, 2025). If the Company does not so elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company ~~shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall~~ will be deemed to have elected ~~Combination Settlement in respect of its Conversion Obligation, and~~ the ~~Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant~~ Default Settlement Method (and in such failure to affirmatively elect a Settlement Method will not constitute a Default or an Event of Default). If the ~~case of an election of~~ Company elects Combination Settlement, ~~the relevant Settlement Notice shall indicate~~ but does not concurrently notify converting Holders of the Specified Dollar Amount per $1,000 principal amount of Notes~~. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a~~ , such Specified Dollar Amount ~~per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall~~ will 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 need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its option. (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: (A) ~~if the Company elects to satisfy its Conversion Obligation in respect of such conversion by~~ If Physical ~~Settlement~~Settlement applies, the Company ~~shall~~ will deliver to ~~the~~ converting ~~Holder~~ holdings in respect of each $1,000 principal amount of ~~Notes~~ notes being converted a number of shares of the Company’s Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the relevant Conversion Date; (B) ~~if the Company elects to satisfy its Conversion Obligation in respect of such conversion by~~ If Cash ~~Settlement~~Settlement applies, 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 50 40 consecutive VWAP Trading Days ~~during~~ in 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~~ If Combination ~~Settlement~~Settlement applies, the Company ~~shall~~ will pay or deliver, as the case may be, to converting 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 50 40 consecutive VWAP Trading Days ~~during~~ in the ~~related~~ relevant 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 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~~share, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) in writing of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of ~~delivering~~ fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~13.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the 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 ~~11.02(h~~13.02(h) and, if required, pay all transfer and similar taxes, if any, as provided in Sections 13.02(d) or (e), and (ii) in the case of a 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 thereof) (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, if any, 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 ~~11.02(h~~13.02(h). The Trustee (~~and~~ and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 XIII on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered 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 ~~12.03~~14.02. 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~~, 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 11.03(b)~~ Subject to Sections 13.03 and ~~Section 11.07(a)~~13.07, the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if ~~the Company elects~~ Physical ~~Settlement~~Settlement applies, or on the second Business Day immediately following the last VWAP Trading Day of the Observation Period, in the case of any other Settlement Method; provided that, for any Conversion Date on or after September 15, 2025 to which Physical Settlement is applicable, settlement will occur on the Maturity Date (subject to Section 16.06). If any shares of Common ~~Shares~~ Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver ~~(if applicable)~~ to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be ~~entitled, in certificate form or in book-entry format,~~ entitled 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,~~ 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 ~~11.04~~13.04, no adjustment shall be made for dividends on any ~~Common Shares~~ shares issued upon the conversion of any Note as provided in this Article 11XIII. (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~~, and the Company shall not adjust the Conversion Rate to adjust for any accrued and unpaid interest on 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 excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excluding, ~~the relevant~~ such Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of the Company’s Common ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted with a Conversion Date occurring 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~~ receive, on or, at the Company’s election, before the next Interest Payment Date, 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~~ to be converted with a Conversion Date occurring after any Regular Record Date ~~to the open of business on~~ and before the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable, on such Interest Payment Date, on ~~the Notes so converted~~such Notes; provided that no such payment shall be required (1) ~~for conversions following~~ if such Conversion Date occurs after the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a such Regular Record Date and on or prior to the Business Day immediately following ~~the corresponding~~ such Interest Payment Date; or (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts ~~exist~~ exists at the time of conversion with respect to such ~~Note~~Note or (4) if the Company has specified a Redemption Date that is after such Regular Record Date and on or prior to the second Business Day immediately following such Interest Payment Date. Therefore, for the avoidance of doubt, all Holders of ~~record~~ Notes on the Regular Record Date immediately preceding the Maturity Date, the Fundamental Change Repurchase Date ~~shall~~ and the Redemption Date described in clauses (1), (2) and (4) of this paragraph will receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date, regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the certificate for any shares of Common ~~Shares shall be issuable~~ Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if ~~the Company elects~~ Physical Settlement applies to ~~satisfy the related Conversion Obligation by Physical Settlement~~such conversion) or the last VWAP Trading Day of the relevant Observation Period (if ~~the Company elects (or is deemed~~ Combination Settlement applies to ~~have elected) to satisfy the related Conversion Obligation by Combination Settlement~~such conversion), as the case may be, subject to Sections 13.04(c) and 13.04(e). Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of ~~delivering~~ any fractional share of Common ~~Shares~~ Stock issuable upon conversion based on on, in the case of Combination Settlement, the Daily VWAP ~~for~~ on the ~~relevant Conversion Date (~~last VWAP Trading Day of the applicable Observation Period, or, in the case of Physical Settlement~~) or~~ , based on the ~~Daily~~ daily VWAP ~~for the last Trading Day of~~ on the relevant ~~Observation Period (in the case of Combination Settlement)~~Conversion Date. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of ~~Common Shares~~ shares that shall be issued upon conversion ~~thereof~~ thereof, shall be computed on the basis of the aggregate Daily Settlement Amounts for the ~~relevant~~ applicable Observation ~~Period~~ Period, and any fractional ~~Common Shares~~ shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Sources: Indenture (Encore Capital Group Inc)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this ~~Section 11.02~~‎Section 14.02, ~~Section 11.03(b~~‎Section 14.03(b) and ~~Section 11.07(a~~‎Section 14.07(a), upon conversion of any Note, 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, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j‎(j) of this ~~Section 11.02~~ ‎Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j‎(j) of this ~~Section 11.02~~ ‎Section 14.02 (“Combination Settlement”), at its election, as set forth in this ~~Section 11.02~~‎Section 14.02. (i) All conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date, and all conversions for which the relevant Conversion Date occurs on or after ~~September 1~~November 15, ~~2025~~ 2027 shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes but prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date, and any conversions for which the relevant Conversion Date occurs on or after ~~September 1~~November 15, ~~2025~~2027, the Company shall use the same Settlement Method for all conversions ~~with~~ occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions ~~with~~ occurring on different Conversion Dates. (iii) If, in respect of any Conversion Date (or one of the ~~period~~ periods described in the ~~third~~ fourth immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the ~~Company, through the Trustee,~~ Company shall deliver such Settlement Notice in writing to converting ~~Holders~~ Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the ~~second~~ Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs (x) after the date of issuance of a Redemption Notice with respect to the Notes and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date, in such Redemption Notice, or (y) on or after ~~September 1~~November 15, ~~2025~~2027, no later than ~~September 1~~November 15, ~~2025~~2027) (in each case, the “Settlement Method Election Deadline”). If the Company does not elect a Settlement Method ~~prior to the deadline set forth~~ as described in the immediately preceding ~~sentence~~sentence by the Settlement Method Election Deadline, the Company shall no longer have the right to elect ~~Cash~~ a Settlement Method with respect to any conversion on such Conversion Date (or ~~Physical Settlement~~ during the relevant period, as the case may be), and the Company shall be deemed to have elected ~~Combination~~ the Default 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~~such conversion. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company ~~delivers a Settlement Notice electing~~ timely elects Combination Settlement in (or is deemed to have elected Combination Settlement) with respect ~~of its Conversion Obligation~~ to a conversion but does not ~~indicate a~~ timely notify the converting Holder of the applicable Specified Dollar Amount per $1,000 principal amount of ~~Notes in such Settlement Notice~~Notes, then the Specified Dollar Amount per $1,000 principal amount of Notes for such conversion shall be deemed to be $1,000. By 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 Method in respect of all conversions with a Conversion 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 ~~Holders of~~ the ~~Notes~~Holders, the Trustee and the Conversion Agent (if other than the Trustee), irrevocably fix the Settlement Method to any Settlement Method that the Company ~~may~~is then permitted to elect, ~~prior to September 1, 2025, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through a~~ including Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 ~~for~~ 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 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 ~~Dates occurring subsequent to delivery of~~ Date that is on or after the date the Company sends such notice. ~~Not later than three Business Days after~~ 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 ~~irrevocable~~ election ~~with respect~~ to irrevocably fix the Settlement ~~Method as described in the immediately preceding sentence~~Method, the Company shall ~~issue~~ 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~~ current report on Form 8-K (or ~~press release~~ any successor form) that is filed with the Commission. Notwithstanding the foregoing, no such change in the Default Settlement Method or ~~otherwise provide public disclosure in a manner compliant~~ irrevocable election shall affect any Settlement Method theretofore elected (or deemed to be elected) with ~~Regulation FD announcing that the Company has made such irrevocable election~~respect to any Note pursuant to this ‎Section 14.02(a). For the avoidance of doubt, such an irrevocable election, if made, ~~will~~ shall be effective without the need to amend this ~~Second Supplemental~~ Indenture or the Notes, including pursuant to ~~Section 9.02(i)~~‎Section 10.01(h) of this Indenture. However, the Company ~~may, nonetheless,~~ may nonetheless choose to execute such an amendment at ~~its~~ 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: (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 number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion ~~Date~~Date (plus cash in lieu of any fractional share); (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, 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 50 consecutive Trading Days during the related Observation ~~Period~~Period (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~~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 the amount of cash payable in lieu of delivering fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to ~~Section 11.02(e~~‎Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall ~~(i)~~ in the case of a Global Note, comply with the 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 ~~11.02(h~~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 thereof) (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 ~~11.02(h~~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 11~~ ‎Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered 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 12.03~~‎Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered~~, 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(b) above. Except as set forth in ~~Section 11.03(b~~‎‎Section 14.03(b) and ~~Section 11.07(a~~‎Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical ~~Settlement~~Settlement (provided that, with respect to any Conversion Date 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, in the case of any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to a converting ~~Holders~~Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to the ~~Conversion Agent or to such~~ converting Holder, or such Holder’s nominee or nominees, the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be entitled, in ~~certificate form or in~~ book-entry ~~format~~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 (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 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 11.04~~‎Section 14.04, no adjustment shall be made for dividends on any shares of Common ~~Shares~~ Stock issued upon the conversion of any Note as provided in this Article 1114. (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,~~ below and the Company shall not be required to adjust the Conversion Rate ~~to adjust~~ for any accrued and unpaid ~~interest on the Notes~~interest. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but ~~excluding~~not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~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 such Interest Payment Date, on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a 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 (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts exist at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the Common Shares shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects (or is deemed to have elected) to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional Common Shares upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Common Shares issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of Common Shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional Common 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 ~~11.02~~14.02, Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), upon conversion of any Note, 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, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~14.02. (i) All (x) conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date shall be settled using the same Settlement Method, and (y) all conversions for which the relevant Conversion Date occurs on or after ~~September~~ January 1, 2025 shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice 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 ~~September~~ January 1, 2025, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion Date (or one of the ~~period~~ periods described in the third immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the ~~Company, through the Trustee,~~ 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 ~~second~~ Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs (x) 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 or (y) on or after ~~September~~ January 1, 2025, no later than ~~September~~ January 1, 2025). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. 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 deadline set forth in the second immediately preceding sentence, the Company shall be deemed to have elected the Default Settlement Method in respect of its 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 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 ~~need~~ Company’s failure to ~~amend~~ timely elect a Settlement Method or specify the applicable Specified Dollar Amount shall not constitute a Default under this ~~Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its option~~Indenture. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 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~~Stock, 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 Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional Common Shares~~). The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~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 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 ~~11.02(h~~14.02(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 thereof) (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 ~~11.02(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 11 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 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 ~~12.03~~15.03. 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~~, 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~~ 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 ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical ~~Settlement~~Settlement (provided that, with respect to any conversion 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, in the case of any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to a converting ~~Holders~~Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to the ~~Conversion Agent or to such~~ converting Holder, or such Holder’s nominee or nominees, the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be entitled, in ~~certificate form or in~~ book-entry ~~format~~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 (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 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 ~~11.04~~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 1114. (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, and the Company ~~shall~~ will not adjust the Conversion Rate ~~to adjust~~ for any accrued and unpaid interest on 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 ~~excluding~~not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so converted; provided that no such payment shall be required (1) for conversions ~~following~~ after the close of business on the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption 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 (34) to the extent of any Defaulted Amounts, if any Defaulted Amounts ~~exist~~ 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 shall receive the full interest payment due on the Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the shares of Common ~~Shares~~ Stock shall be issuable upon conversion shall be ~~treated as a stockholder~~ deemed to be the shareholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects (or is deemed to have elected) to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional Common Shares upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Common Shares issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or ~~based on the Daily VWAP for~~ the last Trading Day of the relevant Observation Period (in the case of Combination Settlement)~~. For each Note surrendered for conversion~~, if as the Company has elected Combination Settlement, the full number of Common Shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional Common 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 ~~11.02~~14.02, Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), upon conversion of any Note, the Company shall ~~pay~~ satisfy its Conversion Obligation by paying or ~~deliver~~delivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~14.02. (i) All conversions of Called Notes for which the relevant Conversion Date occurs during 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 ~~September~~ October 1, ~~2025~~ 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, and any conversions for which the relevant Conversion Date occurs on or after ~~September~~ October 1, 2025, 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 ~~the~~ any period described in the third immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the 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 (x) any conversions of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period, in such Notice of Redemption, (y) any conversions of Notes for which the relevant Conversion Date occurs on or after ~~September~~ October 1, 2025, no later than ~~September~~ October 1, ~~2025). If~~ 2025 or (z) any conversions of Notes for which the Company ~~does not elect~~ 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 prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000Election 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 a conversion, 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 with respect to such conversion. 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 timely elect a Settlement Method or specify the applicable Specified Dollar Amount shall not constitute a Default under this Indenture. By written notice to ~~Holders of the Notes~~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 ~~September~~ October 1, 2025. In addition, by notice to all Holders, the Company may, prior to October 1, 2025, at its option, ~~irrevocably~~ elect to ~~satisfy its Conversion Obligation with respect~~ irrevocably fix the Settlement Method to any Settlement Method that the ~~Notes through a~~ 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. 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 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, in writing, Holders converting their Notes through 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. 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~~. Not later than three Business Days after providing notice to Holders~~; provided, however, that no such change in the ~~Trustee and the Conversion Agent (if other than the Trustee) of an~~ Default Settlement Method or irrevocable election will affect any Settlement Method theretofore elected (or deemed to be elected) 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 electionany Note. For the avoidance of doubt, such an irrevocable election, if ~~made~~made by the Company, will be effective without the need to amend this ~~Second Supplemental~~ Indenture or the Notes, including pursuant to ~~Section 9.02(i~~‎‎Section 10.01(m). However, the Company ~~may, nonetheless,~~ may nonetheless choose to execute such an amendment at its option. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 40 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 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~~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 the amount of cash payable in lieu of delivering fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~11.02(h~~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~~ 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 ~~11.02(h~~14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 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 ~~12.03~~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~~, 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 ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical ~~Settlement~~Settlement (provided that, with respect to any Conversion Date following October 1, 2025 where Physical Settlement applies to the related conversion, the Company shall settle any such conversion on the Maturity Date), or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to a converting ~~Holders~~Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be entitled, in ~~certificate form or in~~ book-entry ~~format~~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 (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 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 ~~11.04~~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 1114. (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~~, and the Company shall not adjust the Conversion Rate to adjust for any accrued and unpaid interest on 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 ~~excluding~~not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~excluding~~not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest ~~payable, on such Interest Payment Date,~~ payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the close of business on the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the 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 (34) to the extent of any Defaulted Amounts, if any Defaulted Amounts exist at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the Common Shares shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects (or is deemed to have elected) to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional Common Shares upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Common Shares issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of Common Shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional Common Shares remaining after such computation shall be paid in cash.Defau

Appears in 1 contract

Sources: Indenture (Accolade, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~14.02, Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), upon conversion of any Note, the Company shall ~~pay~~ satisfy its Conversion Obligation by paying or ~~deliver~~delivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Physical Settlement”) or a combination of cash and shares of Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Combination Settlement”), at its election, based on the applicable Conversion Rate, as set forth in this Section ~~11.02~~14.02. (i) All conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date, and all conversions for which the relevant Conversion Date occurs on or after ~~September 1~~August 15, ~~2025~~ 2026 shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice 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 ~~September 1~~August 15, ~~2025~~2026, 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 Trustee and the Conversion Agent, the Company may, prior to August 15, 2026, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through Combination Settlement with a specified dollar amount per $1,000 principal amount of Notes of $1,000 for all Conversion Dates occurring subsequent to delivery of such notice. For the avoidance of doubt, any election to irrevocably fix the Settlement Method, if made, shall be effective without the need to amend this Indenture or the Notes, including pursuant to the provisions of Section 10.01(i). However, the Company may nonetheless choose to execute such an amendment at its option. (iii) If, in respect of any Conversion Date (or ~~the period described~~ in the ~~third immediately succeeding set~~ case of ~~parentheses~~any conversions for which the relevant Conversion Date occurs (x) after the date of issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date, ~~as the case may be~~in such Redemption Notice or (y) on or after August 15, 2026, no later than August 15, 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, through~~ 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 ~~second~~ Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs (x) 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 or (y) on or after ~~September 1~~August 15, ~~2025~~2026, no later than ~~September 1~~the close of business on the Trading Day immediately preceding August 15, ~~2025~~2026). If the Company does not timely elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement for such conversion or during such period and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. 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 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 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 ~~need~~ Company’s failure to ~~amend this Second Supplemental Indenture~~ timely elect a Settlement Method or ~~the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its option~~indicate a Specified Dollar Amount shall not constitute a Default. (iv) The cash, shares of Common ~~Shares~~ Stock or combination of cash and shares of Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, 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 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~~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 the amount of cash payable in lieu of delivering fractional shares of Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~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 ~~procedures of the Depositary~~ Applicable Procedures in effect at that time for converting a beneficial interest in a Global Note 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 ~~11.02(h~~14.02(h) (and, if required, pay all transfer or similar taxes, if any, as set forth in Section 14.02(e)) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a ~~facsimile~~ facsimile, PDF or other electronic transmission thereof) (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~~ the Special Interest payable on the next Special Interest Payment Date to which such Holder is not entitled as set forth in Section ~~11.02(h~~14.02(h). The ~~Trustee (and if different, the~~ Conversion ~~Agent)~~ Agent shall notify the Company of any conversion pursuant to this Article 11 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 ~~12.03~~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~~, 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 ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical ~~Settlement~~Settlement (provided that, with respect to any Conversion Date occurring on or after August 15, 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, in the case of any other Settlement Method. If any shares of Common ~~Shares~~ Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver ~~(if applicable) to the Conversion Agent or~~ to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common ~~Shares~~ Stock to which such Holder shall be ~~entitled, in certificate form or in book-entry format,~~ entitled 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~~ 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 be required to 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 ~~11.04~~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 1114. (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~~Special Interest, if any, except as set forth ~~below, and~~ below in the ~~Company shall not adjust the Conversion Rate to adjust for any accrued and unpaid interest on the Notes~~fifth sentence of this paragraph. 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~~Special Interest, if any, to, but excluding, the relevant Conversion Date. As a result, accrued and unpaid ~~interest~~Special Interest, if any, to, but excluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common ~~Shares~~Stock, 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 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~~ 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 payable, on such~~ any Special Interest ~~Payment Date,~~ payable on the Notes so converted; 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 ~~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; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Special Interest Record Date and on or prior to the Business Day immediately succeeding the corresponding Special Interest Payment Date; or (34) to the extent of any Defaulted Amounts, if any Defaulted Amounts ~~exist~~ exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the ~~Regular~~ Special Interest Record Date immediately preceding the Maturity Date (if and to the extent that Special Interest is payable on the Maturity Date) shall receive the full interest payment due on the Maturity Date in cash regardless of whether their Notes have been converted following such ~~Regular~~ Special 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 stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common ~~Shares~~ Stock issuable upon conversion based on the Daily VWAP ~~for~~ on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP ~~for~~ on the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of ~~Common Shares~~ shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation ~~Period and any fractional Common Shares remaining after such computation shall be paid in cash.~~Per

Appears in 1 contract

Sources: Indenture (Liveperson Inc)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~11.02~~14.02, Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), upon conversion of any Note, the Company shall ~~pay~~ satisfy its Conversion Obligation by paying or ~~deliver~~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 ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Class A Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Physical Settlement”) or a combination of cash and shares of Class A Common ~~Shares~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Class A Common ~~Shares~~ Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~14.02. (i) All conversions ~~for which the relevant Conversion Date occurs~~ occurring on or after ~~September~~ March 1, ~~2025~~ 2023 shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs on or after ~~September~~ March 1, ~~2025~~2023, 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 March 1, 2023, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through Combination Settlement with a specified dollar amount per $1,000 principal amount of Notes of $1,000 for all Conversion Dates occurring subsequent to delivery of such notice. (iii) If, in respect of any Conversion Date (or ~~the period described~~ in the ~~third~~ case of any conversions occurring on or after March 1, 2023, no later than the close of business on the Business Day immediately ~~succeeding set of parentheses~~preceding March 1, ~~as the case may be~~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)) to converting Holders, the ~~Company, through~~ 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 ~~second~~ Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions ~~for which the relevant Conversion Date occurs~~ occurring on or after ~~September~~ March 1, ~~2025~~2023, no later than ~~September~~ the close of business on the Business Day immediately preceding March 1, ~~2025~~2023). If the Company does not timely elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement for such conversion or during such period and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. 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 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 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 need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its option. (iv) The cash, shares of Class A Common ~~Shares~~ Stock or combination of cash and shares of Class A Common ~~Shares~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Class A Common ~~Shares~~ Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 40 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, 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 50 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~~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 the amount of cash payable in lieu of delivering fractional shares of Class A Common ~~Shares~~Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~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 ~~procedures of the Depositary~~ 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 ~~11.02(h~~14.02(h) (and, if required, pay all transfer or similar taxes, if any, as set forth in Section 14.02(e)) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a ~~facsimile~~ facsimile, PDF or other electronic transmission thereof) (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 ~~11.02(h~~14.02(h). The Trustee (~~and~~ and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 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 ~~12.03~~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~~, 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 ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical ~~Settlement~~Settlement (provided that, with respect to any Conversion Date occurring on or after March 1, 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, in the case of any other Settlement Method. If any shares of Class A Common ~~Shares~~ Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver ~~(if applicable) to the Conversion Agent or~~ to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Class A Common ~~Shares~~ Stock to which such Holder shall be ~~entitled, in certificate form or in book-entry format,~~ entitled 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 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 ~~11.04~~14.04, no adjustment shall be made for dividends on any shares of Class A Common ~~Shares~~ Stock issued upon the conversion of any Note as provided in this Article 1114. (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, and~~ below in the ~~Company shall not adjust the Conversion Rate to adjust for any accrued and unpaid interest on the Notes~~fifth sentence of this paragraph. 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 excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Class A Common ~~Shares~~Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date 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 such Interest Payment Date,~~ payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a 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 (3) to the extent of any ~~Defaulted Amounts~~overdue interest, if any ~~Defaulted Amounts exist~~ overdue interest exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the certificate for any shares of Class A Common ~~Shares shall be issuable~~ Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects ~~(or is deemed to have elected)~~ to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Class A Common ~~Shares~~ Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Class A Common ~~Shares~~ Stock issuable upon conversion based on the Daily VWAP ~~for~~ on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP ~~for~~ on the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of ~~Common Shares~~ shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional ~~Common Shares~~ 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 ~~11.02~~14.02, Section ~~11.03(b~~14.03(b) and Section ~~11.07(a~~14.07(a), upon conversion of any Note, 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, cash (“Cash Settlement”), ~~Common Shares~~shares of Class C Capital Stock, together with cash, if applicable, in lieu of delivering any fractional ~~Common Shares~~ share of Class C Capital Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Physical Settlement”) or a combination of cash and ~~Common Shares~~shares of Class C Capital Stock, together with cash, if applicable, in lieu of delivering any fractional ~~Common Shares~~ share of Class C Capital Stock in accordance with subsection (j) of this Section ~~11.02~~ 14.02 (“Combination Settlement”), at its election, as set forth in this Section ~~11.02~~14.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~September~~ March 1, ~~2025~~ 2024, and all conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date, shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption 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 ~~September~~ March 1, ~~2025~~2024, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion Date (or one of the ~~period~~ periods described in the third immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the 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 for which the relevant Conversion Date occurs (x) 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 or (y) on or after ~~September~~ March 1, ~~2025~~2024, no later than ~~September~~ March 1, ~~2025~~2024). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. 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 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 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 need to amend this Second Supplemental Indenture or the Notes, including pursuant to Section 9.02(i). However, the Company may, nonetheless, choose to execute such an amendment at its option. (iv) The cash, ~~Common Shares~~ shares of Class C Capital Stock or combination of cash and ~~Common Shares~~ shares of Class C Capital Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of ~~Common Shares~~ shares of Class C Capital Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 40 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, 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 50 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~~share of Class C Capital 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 the amount of cash payable in lieu of delivering fractional ~~Common Shares~~shares of Class C Capital Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~11.02(e~~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 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 ~~11.02(h~~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 thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ~~Common Shares~~ shares of Class C Capital Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~11.02(h~~14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 11 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered 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 ~~12.03~~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~~, 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 ~~11.03(b~~14.03(b) and Section 11.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any Common Shares are due to converting Holders, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of Common Shares to which such Holder shall be entitled, in certificate form or in book-entry format, 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 11.04, no adjustment shall be made for dividends on any Common Shares issued upon the conversion of any Note as provided in this Article 11. (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, and the Company shall not adjust the Conversion Rate to adjust for any accrued and unpaid interest on 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 excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and 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 such Interest Payment Date, on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a 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 (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts exist at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the Common Shares shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects (or is deemed to have elected) to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional Common Shares upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Common Shares issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of Common Shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional Common Shares remaining after such computation shall be paid in cash.and

Appears in 1 contract

Sources: Indenture (Zillow Group, Inc.)

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