Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the Issuer 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 Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02. (i) All conversions for which the relevant Conversion Date occurs on or after November 15, 2025, and all conversions for which the relevant Conversion Date occurs after the Issuer’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 Issuer’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 November 15, 2025, the Issuer shall use the same Settlement Method for all conversions with the same Conversion Date, but the Issuer 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, the Issuer elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date, the Issuer shall deliver such Settlement Notice in writing to the Holders with a copy to the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of 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 November 15, 2025, no later than November 15, 2025). If the Issuer does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Issuer shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to such conversion and the Issuer 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 Issuer 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. (iv) The cash, shares of Common Stock or combination of cash and shares of Common Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Issuer elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Issuer shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date (and cash in lieu of fractional shares as provided herein); (B) if the Issuer elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Issuer 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 40 consecutive Trading Days during the related Observation Period; and (C) if the Issuer elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Issuer 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 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 Issuer 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 Stock, the Issuer 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 Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to 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 any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) 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 or by facsimile 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 Obligation to be registered, (2) surrender such Notes, duly endorsed to the Issuer 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 14.02(h) and any taxes payable as described in Section 14.02(d) or Section 14.02(e). The Trustee (and if different, the Conversion Agent) shall notify the Issuer of any conversion pursuant to this 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 Issuer in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with 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. (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 14.03(b) and Section 14.07(a), the Issuer 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 Issuer elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer 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 shares of Common Stock are due to converting Holders, the Issuer shall issue or cause to be issued, and deliver to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common Stock to which such Holder shall be entitled in satisfaction of the Issuer’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Issuer 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 Issuer 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 Issuer shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common 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 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 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Issuer 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes. The Issuer’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common 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 shall receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Issuer has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the date on which the corresponding interest payment is made; (3) if the Issuer 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 date on which the corresponding interest payment is made; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date or any Redemption Date shall receive the full interest payment due on the Maturity Date or such Redemption Date, as applicable, regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name any shares of Common Stock delivered upon conversion is registered shall be deemed to be the holder of record of such shares as of the close of business on the relevant Conversion Date (in the case of Physical Settlement) or the last Trading Day of the relevant Observation Period (in the case of 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 as of the time immediately prior to the close of business on the Conversion Date. (j) The Issuer shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common 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 Issuer has elected (or is deemed to have elected) Combination Settlement, the full number of 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 shares remaining after such computation shall be paid in cash.

Appears in 4 contracts

Sources: First Supplemental Indenture (Intercept Pharmaceuticals, Inc.), Exchange Agreement (Intercept Pharmaceuticals, Inc.), Subscription Agreement (Intercept Pharmaceuticals, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section ~~14.03(b~~14.04(b) and Section ~~14.07(a~~14.08(a), upon conversion of any Note, the ~~Issuer~~ 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 ~~Stock~~Shares, together with cash, if applicable, in lieu of delivering any fractional ~~share of~~ Common ~~Stock~~ Share in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”) or a combination of cash and ~~shares of~~ Common ~~Stock~~Shares, together with cash, if applicable, in lieu of delivering any fractional ~~share of~~ Common ~~Stock~~ Share in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in and subject to this Section 14.02. Notwithstanding the foregoing, Cash Settlement shall apply (and the Company shall not have the right to elect or apply any Settlement Method other than Cash Settlement) to any conversion of Notes with a Conversion Date that occurs prior to the Cap Termination Date to the extent the number of Common Shares otherwise issuable upon such conversion (assuming the maximum number of Common Shares that could be issued upon such conversion if the total number of Common Shares is not known on the Conversion Date, without regard to any Beneficial Ownership Limit), when aggregated with the number of all Common Shares delivered in respect of conversions of Notes and/or Other Senior Secured Convertible Notes that have occurred on and/or prior to the Conversion Date for such conversion (such numbers subject to appropriate adjustment in compliance with the rules of any exchange on which the Company’s securities are then listed in the event of any adjustment to the Aggregate Share Cap), would exceed the Aggregate Share Cap. (i) All conversions for which the relevant Conversion Date occurs ~~on or after November 15, 2025, and all conversions for which the relevant Conversion Date occurs~~ after the ~~Issuer~~Company’s issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption ~~Date,~~ Date shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs after the ~~Issuer~~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 November 15, 2025~~Date, the ~~Issuer~~ Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the ~~Issuer~~ 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~~Date (or the period described in the third immediately succeeding set of parentheses), the ~~Issuer~~ Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion ~~Date~~Date (or such period, as the case may be), the ~~Issuer~~ Company, through the Trustee, shall deliver such Settlement Notice ~~in writing~~ to ~~the~~ converting Holders ~~with a copy to the Trustee and the Conversion Agent (if other than the Trustee)~~ no later than ~~the close of business~~ 9:30 a.m., New York City time, on the 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 November 15, 2025, no later than November 15, 2025~~Notice). If the ~~Issuer~~ Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the ~~Issuer~~ Company shall no longer have the right to elect Cash Settlement or ~~Physical~~ Combination Settlement ~~with respect to such conversion~~ and the ~~Issuer~~ Company shall be deemed to have elected ~~Combination~~ Physical Settlement in respect of its Conversion Obligation, ~~and~~ subject to the ~~Specified Dollar Amount per $1,000 principal amount~~ second sentence of ~~Notes shall be equal~~ Section 14.02(a) at all times prior to ~~$1,000~~the Cap Termination Date. 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, which shall not be less than $1,000. If the ~~Issuer~~ 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. At any time after the Cap Termination Date has occurred, 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 Common Shares, 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. (iv) The Company shall notify the Holders of the Notes, the Trustee and the Conversion Agent of the date the Company has obtained the Requisite NYSE Shareholder Approval, if at all, and the occurrence of the Cap Termination Date no later than the date the Requisite NYSE Shareholder Approval is obtained and the Cap Termination Date, respectively. (v) The cash, ~~shares of~~ Common ~~Stock~~ Shares or combination of cash and ~~shares of~~ Common ~~Stock~~ Shares in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the ~~Issuer~~ Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the ~~Issuer~~ 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 ~~Stock~~ Shares equal to the Conversion Rate in effect on the Conversion ~~Date (and cash in lieu of fractional shares as provided herein)~~Date; (B) if the ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash ~~Settlement~~Settlement (or Cash Settlement otherwise applies), the ~~Issuer~~ 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 ~~40 consecutive~~ Trading Days during the related Observation Period; and (C) if the ~~Issuer~~ Company elects ~~(or is deemed to have elected)~~ to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the ~~Issuer~~ 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 ~~40 consecutive~~ Trading Days during the related Observation Period. (vvi) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the ~~Issuer~~ Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement ~~Amounts or~~ Amounts, the Daily Conversion ~~Values, as the case may be,~~ Values and the amount of cash payable in lieu of delivering any fractional ~~share of~~ Common ~~Stock~~Share, the ~~Issuer~~ Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) in writing of the Daily Settlement ~~Amounts or~~ Amounts, the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional ~~shares of~~ Common ~~Stock~~Shares. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to 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 any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) 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 designated corporate trust office of the Conversion Agent ~~or by facsimile~~ 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~~ Shares to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the ~~Issuer~~ 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, 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 14.02(h~~) and any taxes payable as described in Section 14.02(d) or Section 14.02(e~~). The Trustee (and if different, the Conversion Agent) shall notify the ~~Issuer~~ Company of any conversion pursuant to this 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 ~~Issuer~~ Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with 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. (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 ~~14.03(b~~14.04(b) and Section ~~14.07(a~~14.08(a), the ~~Issuer~~ 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 Issuer elects Physical Settlement (~~; provided that for any conversion of Notes ~~converted~~ in connection with a Redemption Notice to which Cash Settlement or Combination Settlement applies, 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 later of (x) the last Trading Day of the relevant Observation Period and (y) the relevant Conversion Date; provided, however, that with respect to conversions for which Physical Settlement applies and the relevant Conversion Date occurs after ~~the close of business on~~ the Regular Record Date immediately preceding the Maturity Date, the ~~Issuer~~ Company shall deliver and, if applicable, pay 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 ~~shares of~~ Common ~~Stock~~ Shares are due to converting Holders, the ~~Issuer~~ 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 ~~Stock~~ Shares to which such Holder shall be ~~entitled~~ entitled, in certificate form or in book-entry format, in satisfaction of the ~~Issuer~~Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the ~~Issuer~~ Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the ~~Issuer~~ 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~~ is 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 ~~Issuer~~ Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any ~~shares of~~ Common ~~Stock~~ Shares upon conversion, unless (i) 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~~tax or (ii) the tax consists of Luxembourg registration duties (droits d'enregistrement) payable in the case of voluntary registration of the conversion by a Holder with the Administration de l'Enregistrement des Domaines et de la TVA in Luxembourg, or registration of the conversion in Luxembourg when such registration is not reasonably required to enforce the rights of that Holder under the Notes. The Conversion Agent may refuse to deliver the certificates representing the ~~shares of~~ Common ~~Stock~~ 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 ~~14.04~~14.05, no adjustment shall be made for dividends on any ~~shares of~~ Common ~~Stock~~ Shares issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The ~~Issuer~~ 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes~~. The ~~Issuer~~Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and ~~shares of~~ Common ~~Stock~~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 ~~shall~~ will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided 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 ~~Issuer~~ Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made~~Interest Payment Date; (3) if the ~~Issuer~~ 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 ~~date on which the~~ corresponding ~~interest payment is made~~Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all applicable Holders of record at the close of business on the Regular Record Date immediately preceding the Maturity ~~Date or any Redemption~~ Date shall receive the full interest payment due on the Maturity Date ~~or such Redemption Date, as applicable,~~ regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name ~~any shares of~~ the Common ~~Stock delivered~~ Shares shall be issuable upon conversion ~~is registered~~ shall be ~~deemed to be the holder~~ treated as a shareholder of record ~~of such shares~~ as of the close of business on the relevant Conversion Date (~~in the case of~~ if Physical ~~Settlement~~Settlement applies) or the last Trading Day of the relevant Observation Period (~~in the case of~~ if Combination ~~Settlement~~Settlement applies), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for ~~conversion as of the time immediately prior to the close of business on the Conversion Date~~conversion. (j) The ~~Issuer~~ Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common 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 Issuer has elected (or is deemed to have elected) Combination Settlement, the full number of 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 shares remaining after such computation shall be paid in cash.

Appears in 2 contracts

Sources: Indenture (Invacare Corp), Indenture (Invacare Corp)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section ~~14.03(b~~14.04(b) and Section ~~14.07(a~~14.08(a), upon conversion of any Note, the ~~Issuer~~ 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 ~~Stock~~Shares, together with cash, if applicable, in lieu of delivering any fractional ~~share of~~ Common ~~Stock~~ Share in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”) or a combination of cash and ~~shares of~~ Common ~~Stock~~Shares, together with cash, if applicable, in lieu of delivering any fractional ~~share of~~ Common ~~Stock~~ Share in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in and subject to this Section 14.02. Notwithstanding the foregoing, Cash Settlement shall apply (and the Company shall not have the right to elect or apply any Settlement Method other than Cash Settlement) to any conversion of Notes with a Conversion Date that occurs prior to the Cap Termination Date to the extent the number of Common Shares otherwise issuable upon such conversion (assuming the maximum number of Common Shares that could be issued upon such conversion if the total number of Common Shares is not known on the Conversion Date, without regard to any Beneficial Ownership Limit), when aggregated with the number of all Common Shares delivered in respect of conversions of Notes and/or Other Senior Secured Convertible Notes that have occurred on and/or prior to the Conversion Date for such conversion (such numbers subject to appropriate adjustment in compliance with the rules of any exchange on which the Company’s securities are then listed in the event of any adjustment to the Aggregate Share Cap), would exceed the Aggregate Share Cap. (i) All conversions for which the relevant Conversion Date occurs ~~on or after November 15, 2025, and all conversions for which the relevant Conversion Date occurs~~ after the ~~Issuer~~Company’s issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption ~~Date,~~ Date shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs after the ~~Issuer~~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 November 15, 2025~~Date, the ~~Issuer~~ Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the ~~Issuer~~ 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~~Date (or the period described in the third immediately succeeding set of parentheses), the ~~Issuer~~ Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion ~~Date~~Date (or such period, as the case may be), the ~~Issuer~~ Company, through the Trustee, shall deliver such Settlement Notice ~~in writing~~ to ~~the~~ converting Holders ~~with a copy to the Trustee and the Conversion Agent (if other than the Trustee)~~ no later than ~~the close of business~~ 9:30 a.m., New York City time, on the 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 November 15, 2025, no later than November 15, 2025~~Notice). If the ~~Issuer~~ Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the ~~Issuer~~ Company shall no longer have the right to elect Cash Settlement or ~~Physical~~ Combination Settlement ~~with respect to such conversion~~ and the ~~Issuer~~ Company shall be deemed to have elected ~~Combination~~ Physical Settlement in respect of its Conversion Obligation, ~~and~~ subject to the ~~Specified Dollar Amount per $1,000 principal amount~~ second sentence of ~~Notes shall be equal~~ Section 14.02(a) at all times prior to ~~$1,000~~the Cap Termination Date. 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, which shall not be less than $1,000. If the ~~Issuer~~ 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. At any time after the Cap Termination Date has occurred, 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 Common Shares, 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. (iv) The Company shall notify the Holders of the Notes, the Trustee and the Conversion Agent of the date the Company has obtained the Requisite NYSE Shareholder Approval, if at all, and the occurrence of the Cap Termination Date no later than the date the Requisite NYSE Shareholder Approval is obtained and the Cap Termination Date, respectively. (v) The cash, ~~shares of~~ Common ~~Stock~~ Shares or combination of cash and ~~shares of~~ Common ~~Stock~~ Shares in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Issuer elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Issuer shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date (and cash in lieu of fractional shares as provided herein); (B) if the Issuer elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Issuer 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 40 consecutive Trading Days during the related Observation Period; and (C) if the Issuer elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Issuer 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 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 Issuer 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 Stock, the Issuer 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 Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to 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 any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) 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 or by facsimile 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 Obligation to be registered, (2) surrender such Notes, duly endorsed to the Issuer 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 14.02(h) and any taxes payable as described in Section 14.02(d) or Section 14.02(e). The Trustee (and if different, the Conversion Agent) shall notify the Issuer of any conversion pursuant to this 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 Issuer in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with 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. (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 14.03(b) and Section 14.07(a), the Issuer 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 Issuer elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer 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 shares of Common Stock are due to converting Holders, the Issuer shall issue or cause to be issued, and deliver to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common Stock to which such Holder shall be entitled in satisfaction of the Issuer’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Issuer 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 Issuer 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 Issuer shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common 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 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 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Issuer 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes. The Issuer’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common 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 shall receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Issuer has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the date on which the corresponding interest payment is made; (3) if the Issuer 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 date on which the corresponding interest payment is made; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date or any Redemption Date shall receive the full interest payment due on the Maturity Date or such Redemption Date, as applicable, regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name any shares of Common Stock delivered upon conversion is registered shall be deemed to be the holder of record of such shares as of the close of business on the relevant Conversion Date (in the case of Physical Settlement) or the last Trading Day of the relevant Observation Period (in the case of 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 as of the time immediately prior to the close of business on the Conversion Date. (j) The Issuer shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common 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 Issuer has elected (or is deemed to have elected) Combination Settlement, the full number of 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 shares remaining after such computation shall be paid in cash.

Appears in 2 contracts

Sources: Supplemental Indenture (Invacare Corp), Supplemental Indenture (Invacare Corp)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~14.02, Section 14.03(b)~~ 14.02 and Section ~~14.07(a~~14.06(a), upon conversion of any Note, the ~~Issuer~~ 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 Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02. (i) All conversions for which the relevant Conversion ~~Date~~ Dates occurs (x) on or after November 15, ~~2025, and all conversions for which~~ 2027 shall be settled using the ~~relevant Conversion Date occurs after the Issuer’s issuance of~~ same Settlement Method or (y) during a Redemption ~~Notice with respect to the Notes and prior to the related Redemption Date,~~ Period shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs ~~after the Issuer’s issuance of~~ during a Redemption ~~Notice with respect to the Notes but prior to the related Redemption Date~~ Period and any conversions for which the relevant Conversion Date occurs on or after November 15, ~~2025~~2027, the ~~Issuer~~ Company shall use the same Settlement Method for all conversions ~~with~~ occurring on the same Conversion Date, but the ~~Issuer~~ 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~~Date (or in the case of any conversions occurring (x) during a Redemption Period or (y) on or after November 15, 2027), the ~~Issuer~~ Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion ~~Date~~Date (or such period, as the case may be), the ~~Issuer~~ Company shall deliver such Settlement Notice ~~in writing~~ to ~~the Holders with a copy to~~ converting Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Scheduled Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions ~~for which the relevant Conversion Date occurs~~ occurring (x) ~~after the date of issuance of~~ during a Redemption ~~Notice with respect to the Notes and prior to the related Redemption Date~~Period, in such Redemption ~~Notice~~ Notice, or (y) on or after November 15, ~~2025~~2027, no later than the close of business on Scheduled Trading Day immediately preceding November 15, ~~2025~~2027) (in each case, the “Settlement Method Election Deadline”). If the ~~Issuer~~ Company does not timely elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the ~~Issuer~~ Company shall no longer have the right to elect Cash Settlement or ~~Physical~~ Combination Settlement ~~with respect to~~ for such ~~conversion~~ Conversion Date or during such period and the ~~Issuer~~ 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 ~~Issuer~~ 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, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to November 15, 2027, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of at least $1,000 for all Conversion Dates occurring subsequent to delivery of such notice. If the Company irrevocably elects Combination Settlement with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above a specific amount, the Company will, after the date of such election, inform Holders converting their Notes, the Trustee and the Conversion Agent (if other than the Trustee) of such Specified Dollar Amount no later than the relevant Settlement Method Election Deadline, or, if the Company does not timely notify Holders, the Trustee and the Conversion Agent (if other than the Trustee), such Specified Dollar Amount will be the specific amount set forth in the Settlement Notice or, if no specific amount was set forth in the Settlement Notice, such Specified Dollar Amount will be $1,000 per $1,000 principal amount of Notes. The irrevocable election will apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such notice; provided, however, that no such election will affect any settlement method theretofore elected (or deemed to be elected) with respect to any Note. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes. However, the Company may nonetheless choose to execute such an amendment at its option. If the Company irrevocably fixes the Settlement Method pursuant to this Section 14.02(a)(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 Stock or combination of cash and shares of Common Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the ~~Issuer~~ 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 Stock equal to the Conversion Rate in effect on the Conversion ~~Date (and cash in lieu of fractional shares as provided herein)~~Date; (B) if the ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the ~~Issuer~~ 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 40 30 consecutive Trading Days during the related Observation Period; and (C) if the ~~Issuer~~ Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the ~~Issuer~~ 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 40 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 ~~Issuer~~ 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 Stock, the ~~Issuer~~ 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 Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to 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 14.02(h) and any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) 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 ~~or by facsimile~~ 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 Obligation to be registered, (2) surrender such Notes, duly endorsed to the ~~Issuer~~ 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 14.02(h~~) and any taxes payable as described in Section 14.02(d) or Section 14.02(e~~). The Trustee (~~and~~ and, if different, the Conversion Agent) shall notify the ~~Issuer~~ Company of any conversion pursuant to this 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 ~~Issuer~~ Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with 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. (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 ~~14.03(b) and Section 14.07(a~~14.06(a), the ~~Issuer~~ 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 ~~Issuer~~ Company elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer shall deliver the consideration due in respect of the Conversion Obligation on the Maturity Date)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 Stock are due to a converting ~~Holders~~Holder, the ~~Issuer~~ Company shall issue or cause to be issued, and deliver to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common Stock to which such Holder shall be entitled in satisfaction of the ~~Issuer~~Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the ~~Issuer~~ Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the ~~Issuer~~ 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 ~~Issuer~~ Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common 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~~ such tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common 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 ~~14.04~~14.03, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The ~~Issuer~~ 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes~~. The ~~Issuer~~Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but ~~not including~~excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~not including~~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 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 ~~shall~~ will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Issuer has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the date on which the corresponding interest payment is made; (3) if the Issuer 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 date on which~~ succeeding the corresponding ~~interest payment~~ Interest Payment Date; (3) if the Company has specified a Redemption Date that is ~~made~~after a Regular Record Date and on or prior to the second Scheduled Trading Day immediately succeeding the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, any Fundamental Change Repurchase Date or ~~any~~ Redemption ~~Date~~ Date, in each case, as described above, shall receive the full interest payment due on the Maturity Date or ~~such Redemption Date, as applicable,~~ 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 Stock delivered upon conversion is registered shall be ~~deemed to be the holder~~ treated as a stockholder of record ~~of such shares~~ as of the close of business on the relevant Conversion Date (in if the ~~case of~~ Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (in if the ~~case of~~ Company elects 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 as of the time immediately prior to the close of business on the Conversion Date~~conversion. (j) The ~~Issuer~~ Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common 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 Issuer has elected (or is deemed to have elected) Combination Settlement, the full number of 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 shares remaining after such computation shall be paid in cash.the

Appears in 2 contracts

Sources: Investment Agreement (Pacific Biosciences of California, Inc.), Indenture (Pacific Biosciences of California, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) ~~Subject to this Section 14.02,~~ Except as provided in Section 14.03(b) and Section 14.07(a), upon conversion of any Note, on the ~~Issuer~~ second Business Day immediately following the last Trading Day of the relevant Observation Period, 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 (~~a “~~Cash Settlement”), shares~~ Settlement Amount” equal to the sum of ~~Common Stock~~the Daily Settlement Amounts for each of the 40 Trading Days during the relevant Observation Period for such Note, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02. (i) All conversions for which the relevant Conversion Date occurs ~~on or after November 15, 2025, and all conversions for which the relevant Conversion Date occurs~~ after the ~~Issuer~~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 15, 2029, shall be settled using the same ~~Settlement Method. (ii)~~ forms and amounts of consideration. Except for any conversions for which the relevant Conversion Date occurs after the ~~Issuer~~Company’s issuance of a Redemption Notice with respect to the Notes but prior to the related Redemption ~~Date~~ Date, and any conversions for which the relevant Conversion Date occurs on or after ~~November~~ September 15, ~~2025~~2029, the ~~Issuer~~ Company shall use the same ~~Settlement Method~~ forms and amounts of consideration for all conversions with the same Conversion Date, but the ~~Issuer~~ 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~~Date (or one of the periods described in the third immediately succeeding set of parentheses, as the case may be), the ~~Issuer~~ Company elects to ~~deliver~~ settle all or a ~~notice~~ portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cash in respect of such Conversion Date (or such period, as the case may be), the Company shall inform converting Holders of such election (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date, the Issuer shall deliver such Settlement Notice in writing to the Holders with a copy to the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Trading Day immediately following the ~~relevant~~ related 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~~ Notice, or (y) on or after ~~November~~ September 15, ~~2025~~2029, no later than ~~November~~ September 15, ~~2025~~2029) and the Company shall indicate in such Settlement Notice the percentage of the consideration due upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”). If the ~~Issuer~~ Company does not elect a ~~Settlement Method~~ Cash Percentage prior to the deadline set forth in the immediately preceding sentence, the ~~Issuer~~ Company shall no longer have the right to elect a Cash ~~Settlement or Physical Settlement with respect to such conversion~~ Percentage and the ~~Issuer~~ 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 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 Issuer 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. (iv) The cash, shares of Common Stock or combination of cash and delivering shares of Common Stock in respect of the remainder (other than cash in lieu of any ~~conversion~~ fractional share), if any, of ~~Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Issuer elects to satisfy~~ its Conversion Obligation in ~~respect~~ excess of ~~such conversion by Physical Settlement,~~ the ~~Issuer shall deliver to~~ aggregate principal portion of the ~~converting Holder in respect of each $1,000 principal amount of~~ Notes being converted ~~a number of shares of Common Stock equal~~ as set forth herein. The Company shall separately provide to the ~~Conversion Rate in effect on~~ Trustee and the Conversion ~~Date~~ Agent (~~and cash~~ if other than the Trustee) in ~~lieu of fractional shares as provided herein~~writing any notice contemplated by this clause (i);. (Bii) if the Issuer elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Issuer 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 40 consecutive Trading Days during the related Observation Period; and (C) if the Issuer elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Issuer 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 The Daily Settlement Amounts ~~for each of~~ (if applicable), the ~~40 consecutive Trading Days during the related Observation Period. (v) The~~ Daily Net Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the ~~Issuer~~ 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 Stock, the ~~Issuer~~ Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) in writing 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 fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section 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 any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) 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 at the office of the Conversion Agent ~~or by facsimile~~ (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 Obligation to be registered, (2) surrender such Notes, duly endorsed to the ~~Issuer~~ Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the Corporate Trust Office or at the office of the Conversion ~~Agent~~Agent (if other than the Trustee), (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 14.02(h~~) and any taxes payable as described in Section 14.02(d) or Section 14.02(e~~). The Trustee (and if different, the Conversion Agent) shall notify the ~~Issuer~~ Company of any conversion pursuant to this 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 ~~Issuer~~ Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with 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. (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 14.03(b) and Section 14.07(a), the Issuer 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 Issuer elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer 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 shares of Common Stock are due to a converting ~~Holders~~Holder, the ~~Issuer~~ 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, ~~certificates or a book-entry transfer through the Depositary for~~ the full number of shares of Common Stock to which such Holder shall be ~~entitled~~ entitled, in book-entry format through the Depositary, in satisfaction of the ~~Issuer~~Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial ~~conversion~~conversion in $1,000 aggregate principal amount or an integral multiple of $1,000 in excess thereof, the ~~Issuer~~ Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the ~~Issuer~~ 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 ~~Issuer~~ Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common 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 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 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The ~~Issuer~~ 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 ~~Issuer~~ Conversion Rate shall not ~~adjust the Conversion Rate~~ be adjusted for any accrued and unpaid interest on any converted Notes. The ~~Issuer~~Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of ~~Notes into a combination of cash and shares of Common Stock~~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 ~~shall~~ will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the ~~Issuer~~ Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made~~Interest Payment Date; (3) if the ~~Issuer~~ 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 ~~date on which the~~ corresponding ~~interest payment is made~~Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date or and any Redemption Date or Fundamental Change Repurchase Date described in clause (2) and (3) of the immediately preceding sentence shall receive the full interest payment due on the Maturity Date or ~~such Redemption Date, as applicable,~~ other applicable Interest Payment Date in cash regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name ~~any~~ the shares of Common Stock ~~delivered~~ shall be issuable upon conversion ~~is registered~~ shall be ~~deemed to be the holder~~ treated as a stockholder of record ~~of such shares~~ as of the close of business on the ~~relevant Conversion Date (in the case of Physical Settlement) or the~~ last Trading Day of the ~~relevant~~ related Observation ~~Period (in the case of 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 as of the time immediately prior to the close of business on the Conversion Date~~conversion. (j) The ~~Issuer~~ Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common 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 Issuer has elected (or is deemed to have elected) Combination Settlement~~, the full number of 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 shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Sources: Indenture (Affirm Holdings, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the ~~Issuer shall~~ Company 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 Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with ~~subsection (j~~Section 14.02(i) ~~of this Section 14.02~~ (“Physical Settlement”) ), or a combination of cash and shares of the Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with ~~subsection (j~~Section 14.02(i) ~~of this Section 14.02~~ (“Combination Settlement”)~~, at its election~~, as set forth in this Section 14.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~November~~ August 15, ~~2025,~~ 2023 and all conversions ~~for which the relevant Conversion Date occurs~~ occurring after the ~~Issuer’s issuance~~ date the Company issues a Notice of ~~a Redemption Notice with respect to the Notes~~ 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 after the Issuer’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 ~~November~~ 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 ~~Issuer~~ 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 ~~Issuer~~ 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~~If the Company elects a Settlement Method, the ~~Issuer elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date, the Issuer~~ Company shall deliver ~~such Settlement Notice in writing~~ notice to ~~the~~ Holders ~~with a copy to the Trustee and~~ through the Conversion Agent ~~(if other than~~ of such Settlement Method the ~~Trustee)~~ Company has selected no later than the close of business on the 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 August 15, 2023, no later than August 15, 2023 or (xB) in the case of any conversions occurring after the date of issuance of a Notice of Tax Redemption ~~Notice with respect to the Notes~~ and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Tax Redemption Date, in such ~~Redemption~~ Notice ~~or (y) on or after November 15, 2025, no later than November 15, 2025~~of Tax Redemption). If the ~~Issuer~~ Company does not timely elect a Settlement ~~Method prior to the deadline set forth in the immediately preceding sentence~~Method, the ~~Issuer~~ Company shall no longer have the right to elect ~~Cash~~ Combination Settlement or Physical Settlement with respect to ~~such conversion~~ that Conversion Date and the ~~Issuer~~ 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 Issuer 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. (iviii) The cash, shares of Common Stock or combination of cash and shares of Common 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 ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the ~~Issuer~~ 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 Stock equal to the Conversion Rate ~~in effect~~ on the Conversion Date (~~and~~ plus cash in lieu of any fractional ~~shares as provided herein~~share of Common Stock issuable upon conversion); (B) if the ~~Issuer~~ Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the ~~Issuer~~ 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 40 20 consecutive VWAP Trading Days during the related Observation Period; and (C) if the ~~Issuer~~ Company elects ~~(or is deemed to have elected)~~ to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the ~~Issuer~~ 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 40 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 ~~Issuer~~ 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 Stock, the ~~Issuer~~ 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 Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (bi) ~~Subject to Section 14.02(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 14.02(h) and any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) 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 or by facsimile~~ 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 shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Issuer 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 ~~14.02(h) and any taxes payable as described in Section 14.02(d) or Section 14.02(e~~14.02(g). The Trustee (and if different, the Conversion Agent) shall notify the ~~Issuer~~ 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. ~~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 Issuer 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 (or, in the case of a Global Note, has complied with the Applicable Procedures with respect to such a withdrawal) in accordance with the terms of Section 15.03. If ~~more than one Note shall be surrendered for conversion~~ a Holder has already delivered a Fundamental Change Repurchase Notice, such Holder’s right to withdraw such notice and convert the Notes that are subject to repurchase will terminate at ~~one time by~~ the ~~same Holder, the Conversion Obligation with respect to such Notes shall be computed~~ close of business on the ~~basis of~~ Business Day immediately preceding the ~~aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered~~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 14.03(b) and Section 14.07(a), the ~~Issuer~~ 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 ~~Issuer~~ Company elects Physical ~~Settlement~~ Settlement; or (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer shall deliver the consideration due in respect of the Conversion Obligation on the Maturity Date), or on 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 Stock are due to converting Holders, the ~~Issuer~~ Company shall issue or cause to be issued, and deliver ~~to the Conversion Agent or~~ to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the ~~Depositary~~ Depositary, as the case may be, for the full number of shares of Common Stock to which such Holder shall be entitled in satisfaction of the ~~Issuer~~Company’s Conversion Obligation. (d) In case any Certificated Note shall be surrendered for partial conversion, in an Authorized Denomination, the ~~Issuer~~ Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder ~~of the Note~~ so surrendered a new Note or Notes in ~~authorized denominations~~ 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 ~~Issuer~~ 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 ~~Issuer~~ Company shall pay any documentary, stamp or similar issue or transfer tax due on the ~~issue~~ issuance of any shares of Common Stock upon ~~conversion~~conversion of such Note, 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 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 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14. (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 ~~Issuer~~ 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes~~. The ~~Issuer~~Company’s ~~settlement~~ payment or delivery, as the case may be, of the ~~full Conversion Obligation~~ Settlement Amount upon conversion of any Note shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than ~~cancelled~~canceled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common 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 shall receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so ~~converted~~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 ~~Issuer~~ Company has ~~specified~~ 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 ~~date on which the~~ corresponding ~~interest payment is made;~~ Interest Payment Date; (3iii) if the ~~Issuer~~ 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 ~~date on which the~~ corresponding ~~interest payment is made~~Interest Payment Date; or or (4iv) to the extent of any ~~Defaulted Amounts~~overdue interest, if any ~~Defaulted Amounts~~ overdue interest exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, any Fundamental Change Repurchase Date or and any Tax Redemption ~~Date~~ as described in clauses (ii) and (iii) above shall receive and retain the full interest payment due on the Maturity Date or ~~such Redemption Date, as applicable,~~ other applicable Interest Payment Date regardless of whether their Notes have been converted following such Regular Record Date. (ih) The Person in whose name any shares of Common Stock delivered upon conversion is registered shall ~~be deemed to be~~ become the holder of record of such shares as of the close of business on (i) the relevant Conversion Date if the Company elects Physical Settlement or (~~in the case of Physical Settlement~~ii) or the last VWAP Trading Day of the relevant Observation Period ~~(in~~ if the ~~case of~~ Company elects 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 time immediately prior to~~ the close of business on such Regular Record Date shall have the ~~Conversion~~ right to receive the interest payable on such Interest Payment Date, in accordance with Section 14.02(g). (ji) The ~~Issuer~~ Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of ~~delivering~~ any fractional share of Common 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 ~~Issuer~~ Company has elected ~~(or is deemed to have elected)~~ Combination Settlement, the full number of 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 ~~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 ~~14.02~~13.02, Section ~~14.03(b~~13.03(b) and Section ~~14.07(a~~13.07(a), upon conversion of any Note, the ~~Issuer~~ 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 Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section ~~14.02~~ 13.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section ~~14.02~~ 13.02 (“Combination Settlement”), at its election, as set forth in this Section ~~14.02~~13.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~November~~ December 15, ~~2025, and all conversions for which the relevant Conversion Date occurs after the Issuer’s issuance of~~ 2024 or during a Redemption ~~Notice with respect to the Notes and prior to the related Redemption Date,~~ Period shall be settled using the same Settlement Method. (ii) Except for any conversions ~~for which~~ described in the relevant Conversion Date occurs after the Issuer’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 November 15, 2025immediately preceding clause (i), the ~~Issuer~~ Company shall use the same Settlement Method for all conversions ~~with~~ occurring on the same Conversion Date, but the ~~Issuer~~ 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~~Date (or the period described in clause (i) above), as the case may be), the ~~Issuer~~ Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion ~~Date~~Date (or such period, as the case may be), the ~~Issuer~~ Company shall deliver such Settlement Notice ~~in writing~~ to ~~the Holders with a copy to~~ converting Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs (xi) ~~after the date of issuance of~~ during a Redemption ~~Notice with respect to the Notes and prior to~~ Period, in the related ~~Redemption Date, in such~~ Redemption Notice or (yii) on or after ~~November~~ December 15, ~~2025~~2024, no later than ~~November~~ the close of business on Scheduled Trading Day immediately preceding March 15, ~~2025~~2024). If the ~~Issuer~~ Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the ~~Issuer~~ Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to such conversion or during such period and the ~~Issuer~~ 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 ~~Issuer~~ 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. Notwithstanding the foregoing, any conversion of Sponsor Notes shall be subject to Section 13.02(a)(v). (iv) The cash, shares of Common Stock or combination of cash and shares of Common Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) Subject to clause (D) below, if the ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the ~~Issuer~~ 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 Stock equal to the Conversion Rate in effect on the Conversion ~~Date (and cash in lieu of fractional shares as provided herein)~~Date; (B) Subject to clause (D) below, if the ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the ~~Issuer~~ 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 40 30 consecutive Trading Days during the related Observation Period; and (C) if the Issuer elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Issuer 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 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 Issuer 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 Stock, the Issuer 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 Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to 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 any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) 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 or by facsimile 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 Obligation to be registered, (2) surrender such Notes, duly endorsed to the Issuer 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 14.02(h) and any taxes payable as described in Section 14.02(d) or Section 14.02(e). The Trustee (and if different, the Conversion Agent) shall notify the Issuer of any conversion pursuant to this 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 Issuer in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with 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. (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 14.03(b) and Section 14.07(a), the Issuer 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 Issuer elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer 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 shares of Common Stock are due to converting Holders, the Issuer shall issue or cause to be issued, and deliver to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common Stock to which such Holder shall be entitled in satisfaction of the Issuer’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Issuer 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 Issuer 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 Issuer shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common 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 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 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Issuer 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes. The Issuer’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common 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 shall receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Issuer has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the date on which the corresponding interest payment is made; (3) if the Issuer 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 date on which the corresponding interest payment is made; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date or any Redemption Date shall receive the full interest payment due on the Maturity Date or such Redemption Date, as applicable, regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name any shares of Common Stock delivered upon conversion is registered shall be deemed to be the holder of record of such shares as of the close of business on the relevant Conversion Date (in the case of Physical Settlement) or the last Trading Day of the relevant Observation Period (in the case of 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 as of the time immediately prior to the close of business on the Conversion Date. (j) The Issuer shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common 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 Issuer has elected (or is deemed to have elected) Combination Settlement, the full number of 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 shares remaining after such computation shall be paid in cash.;

Appears in 1 contract

Sources: Investment Agreement (Twitter, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the ~~Issuer~~ 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 Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~November 15, 2025~~the date of the Company’s issuance of a Redemption Notice with respect to any Notes and prior to the close of business on the Business Day before the related Redemption Date will be settled using the same Settlement Method, and all conversions for which the relevant Conversion Date occurs on or after ~~the Issuer’s issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date~~January 15, 2025 shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs after the ~~Issuer~~Company’s issuance of a Redemption Notice ~~with respect to the Notes~~ but prior to the close of business on the Business Day before the related Redemption ~~Date~~ Date, and any conversions for which the relevant Conversion Date occurs on or after ~~November~~ January 15, 2025, the ~~Issuer~~ Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the ~~Issuer~~ Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion Date (or any conversion for which the relevant Conversion Date occurs (i) after the Company’s issuance of a Redemption Notice and prior to the close of business on the Business Day before the related Redemption Date, or (ii) on or after January 15, 2025), the ~~Issuer~~ Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion ~~Date~~Date (or such period, as the case may be), the ~~Issuer~~ Company, through the Trustee, shall deliver such Settlement Notice ~~in writing~~ to ~~the~~ converting Holders ~~with a copy to the Trustee and the Conversion Agent (if other than the Trustee)~~ no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs (xi) after the date of issuance of a Redemption Notice ~~with respect to the Notes~~ and prior to the close of business on the Business Day before the related Redemption Date, in such Redemption Notice (and, in the case of a partial redemption, in a notice sent on the relevant Redemption Notice Date to all Holders of Notes not called for redemption) or (yii) on or after ~~November~~ January 15, 2025, no later than ~~November~~ January 15, 2025). If the ~~Issuer~~ Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence with respect to any conversion as described in the preceding sentence, the ~~Issuer shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to such conversion and the Issuer~~ 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 ~~Issuer~~ 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. Notwithstanding anything to the contrary in the foregoing, in certain circumstances described in Section 14.01(b)(ii), the Company shall be permitted to irrevocably elect Physical Settlement in a Certain Distributions Notification and any such election would be applicable to conversions with a Conversion Date that occurs on or after the date of delivery to the Holders of the Certain Distributions Notification until the Certain Distributions Conversion Period End Date. (iv) The cash, shares of Common Stock or combination of cash and shares of Common Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if ~~the Issuer elects to satisfy its Conversion Obligation in respect of such conversion by~~ Physical ~~Settlement~~Settlement applies, the ~~Issuer~~ 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 Stock equal to the Conversion Rate in effect on the Conversion ~~Date (and cash in lieu of fractional shares as provided herein)~~Date; (B) if ~~the Issuer elects to satisfy its Conversion Obligation in respect of such conversion by~~ Cash ~~Settlement~~Settlement applies, the ~~Issuer~~ 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 40 20 consecutive Trading Days during the related Observation Period; and (C) if ~~the Issuer elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by~~ Combination ~~Settlement~~Settlement applies, the ~~Issuer~~ 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 40 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 ~~Issuer~~ 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 Stock, the ~~Issuer~~ 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 Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to 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 14.02(h) and any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) 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 ~~or by facsimile~~ 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 Obligation to be registered, (2) surrender such Notes, duly endorsed to the ~~Issuer~~ 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 14.02(h~~) and any taxes payable as described in Section 14.02(d) or Section 14.02(e~~). The Trustee (and if different, the Conversion Agent) shall notify the ~~Issuer~~ Company of any conversion pursuant to this 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 ~~Issuer~~ Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with 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. (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 14.03(b) and Section 14.07(a), the ~~Issuer~~ 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 Issuer elects~~ Physical Settlement applies (provided ~~that for~~ that, with respect to any ~~Notes converted after the close of business on~~ Conversion Date following the Regular Record Date immediately preceding the Maturity ~~Date~~Date where Physical Settlement applies to the related conversion, the ~~Issuer~~ Company shall ~~deliver~~ settle any such conversion on the Maturity Date (or, if the Maturity Date is not a Business Day, the next Business Day), and, for the purposes of calculating the consideration due ~~in respect of~~ upon such conversion, the Conversion ~~Obligation~~ 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 the case of~~ if any other Settlement ~~Method~~Method applies. If any shares of Common Stock are due to a converting ~~Holders~~Holder, the ~~Issuer~~ 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 Stock to which such Holder shall be ~~entitled~~ entitled, in book-entry format through the Depositary, in satisfaction of the ~~Issuer~~Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the ~~Issuer~~ Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the ~~Issuer~~ 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 ~~Issuer~~ Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common 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 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 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The ~~Issuer~~ 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes~~. The ~~Issuer~~Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common 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 ~~shall~~ will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided 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 ~~Issuer~~ Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made~~Interest Payment Date; (3) if the ~~Issuer~~ Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the second Business Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made~~Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record at the close of business on the Regular Record Date immediately preceding the Maturity Date, or a Fundamental Change Repurchase Date or ~~any~~ Redemption Date referred to above, shall receive the full interest payment due on the ~~Maturity~~ corresponding Interest Payment Date ~~or such Redemption Date, as applicable,~~ in cash regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name ~~any~~ the shares of Common Stock ~~delivered~~ shall be issuable upon conversion ~~is registered~~ shall ~~be deemed to be~~ become the ~~holder~~ stockholder of record ~~of such shares~~ as of the close of business on the relevant Conversion Date (in if the ~~case of~~ Company elects to satisfy the related Conversion Obligation by Physical Settlement) or on the last Trading Day of the relevant Observation Period (in if the ~~case of~~ Company elects 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 as of the time immediately prior to the close of business on the Conversion Date~~conversion. (j) The ~~Issuer~~ Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common 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 ~~Issuer~~ Company has elected (or is deemed to have elected) Combination Settlement, the full number of 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 shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Sources: Indenture (Slack Technologies, Inc.)

Appears in 1 contract

Sources: Indenture (Wix.com Ltd.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the ~~Issuer~~ Company shall ~~pay~~ satisfy its Conversion Obligation by paying to the converting Holder in cash the Principal Portion of Notes being converted and paying or ~~deliver~~delivering, as the case may be, cash, shares of Common Stock or a combination of cash and shares of Common Stock, at the Company’s election, to the converting ~~Holder~~Holder in respect of the remainder, if any, of the Conversion Obligation in excess of each $1,000 principal amount of Notes being converted. Pursuant to the foregoing sentence, the Company shall pay (and deliver, if applicable) to the converting Holder in respect of each $1,000 principal amount of Notes being converted, ~~cash (“Cash Settlement”), shares~~ a settlement amount equal to the sum of ~~Common Stock, together with cash, if applicable, in lieu~~ the Daily Settlement Amounts for each of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02the 40 consecutive Trading Days during the relevant Observation Period. (i) All conversions ~~for which the relevant Conversion Date occurs~~ occurring (x) on or after ~~November 15~~June 1, ~~2025, and all conversions for which the relevant Conversion Date occurs after the Issuer’s issuance of~~ 2025 or (y) during a Redemption ~~Notice with respect to the Notes and prior to the related Redemption Date,~~ Period shall be settled using the same ~~Settlement Method~~Cash Percentage. (ii) Except for any conversions for which the relevant Conversion Date occurs ~~after the Issuer’s issuance of~~ during a Redemption ~~Notice with respect to the Notes but prior to the related Redemption Date~~ Period and any conversions for which the relevant Conversion Date occurs on or after ~~November 15~~June 1, 2025, the ~~Issuer~~ Company shall use the same ~~Settlement Method~~ Cash Percentage for all conversions ~~with~~ occurring on the same Conversion Date, but the ~~Issuer~~ Company shall not have any obligation to use the same ~~Settlement Method~~ Cash Percentage with respect to conversions ~~with~~ that occur on different Conversion Dates. (iii) If, in respect of any Conversion ~~Date~~Date (or one of the periods described in the fourth immediately succeeding set of parentheses, as the case may be), the ~~Issuer~~ Company elects to a Cash Percentage, the Company shall deliver a written notice (the “Settlement Notice”) of the ~~relevant Settlement Method~~ Cash Percentage so elected in respect of such Conversion ~~Date~~Date (or such period, as the ~~Issuer shall deliver such Settlement Notice in writing~~ case may be) to ~~the Holders with a copy to~~ converting Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions ~~for which the relevant Conversion Date occurs~~ occurring (xi) ~~after the date of issuance of~~ during a Redemption ~~Notice with respect to the Notes and prior to the related Redemption Date~~Period, in such Redemption ~~Notice~~ Notice, or (yii) on or after ~~November 15~~June 1, 2025, no later than ~~November 15~~the close of business on the Business Day immediately preceding June 1, 2025), and the Company will indicate in such notice the percentage (the “Cash Percentage”) of the excess, if any, of the Daily Conversion Value over the Daily Principal Portion of the Notes being converted that will be paid in cash, if any. If the ~~Issuer~~ Company does not timely elect a ~~Settlement Method~~ Cash Percentage prior to the deadline set forth in the immediately preceding sentence, the ~~Issuer shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to such conversion and the Issuer~~ Company shall be deemed to have elected ~~Combination Settlement in respect~~ a Cash Percentage of ~~its Conversion Obligation~~0%, 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~~ will settle such excess 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 Issuer 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. (iv) The cash, shares of Common Stock or combination of cash and shares of Common Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Issuer elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Issuer shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date (and cash in lieu of fractional shares as provided herein); (B) if the Issuer elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Issuer 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 40 consecutive Trading Days during the related Observation Period; and (C) if the Issuer elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Issuer 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 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 Issuer 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 Stock, the Issuer 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 Stock~~. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination~~. (b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to 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 any taxes payable~~ (and, if required, pay all transfer or similar taxes, if any, as ~~described~~ set forth in Section 14.02(d) or and Section 14.02(e~~) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights~~)) 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 ~~or by facsimile~~ 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 Obligation to be registered, (2) surrender such Notes, duly endorsed to the ~~Issuer~~ 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 14.02(h~~) and any taxes payable as described in Section 14.02(d) or Section 14.02(e~~). The Trustee (~~and~~ and, if different, the Conversion Agent) shall notify the ~~Issuer~~ Company of any conversion pursuant to this 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 ~~Issuer~~ Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with 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. (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~~ ‎Section 14.03(b) and Section 14.07(a), the ~~Issuer~~ Company shall pay or (and deliver, ~~as the case may be,~~ if applicable) the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Issuer elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer 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 relevant Observation Period~~, in the case of any other Settlement Method~~. If any shares of Common Stock are due to converting Holders, the ~~Issuer~~ Company shall issue or cause to be issued, and deliver ~~to the Conversion Agent or~~ to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common Stock to which such Holder shall be entitled in satisfaction of the ~~Issuer~~Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the ~~Issuer~~ Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the ~~Issuer~~ 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 ~~Issuer~~ 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 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 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 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The ~~Issuer~~ 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes~~. The ~~Issuer~~Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but ~~not including~~excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~not including~~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 Stock~~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 ~~shall~~ will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Issuer has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the date on which the corresponding interest payment is made; (3) if the Issuer 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 date on which~~ succeeding the corresponding ~~interest payment~~ Interest Payment Date; (3) if the Company has specified a Redemption Date that is ~~made~~after a Regular Record Date and on or prior to the second Business Day immediately succeeding the corresponding Interest Payment Date; or (4) to the extent of any ~~Defaulted Amounts~~overdue interest, if any ~~Defaulted Amounts~~ overdue interest exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date ~~or any Redemption Date~~ shall receive the full interest payment due on the Maturity Date ~~or such Redemption Date, as applicable,~~ 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 Stock delivered upon conversion is registered shall be deemed to be the holder of record of such shares of Common Stock as of the close of business on the ~~relevant Conversion Date (in the case of Physical Settlement) or the~~ last Trading Day of the relevant Observation ~~Period (in the case of 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 as of the time immediately prior to the close of business on the Conversion Date~~conversion. (j) The ~~Issuer~~ Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common 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~~ Period. (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 ~~Combination Settlement). For each Note surrendered for conversion~~any Global Note, if to the ~~Issuer has elected (or is deemed to have elected) Combination Settlement~~extent permitted by, and practicable under, the ~~full number~~ applicable procedures of ~~shares that shall be issued upon conversion thereof shall~~ the Depositary) be computed based on the ~~basis~~ total principal amount of ~~the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after~~ Notes converted on such ~~computation shall be paid in cash~~Conversion Date by that Holder.

Appears in 1 contract

Sources: Indenture (Middleby Corp)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), ) upon conversion of any Note, on the ~~Issuer~~ 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”), shares~~ Settlement Amount” equal to the sum of ~~Common Stock~~the Daily Settlement Amounts for each of the 20 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 Stock in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02. (i) All conversions for which the relevant Conversion Date occurs on or after November 15, ~~2025,~~ 2029 and all conversions for which the relevant Conversion Date occurs ~~after the Issuer’s issuance of~~ during a Redemption ~~Notice with respect to the Notes and prior to the related Redemption Date,~~ Period shall be settled using the same ~~Settlement Method~~forms and proportions of consideration. (ii) Except for any conversions for which the relevant Conversion Date occurs on or after ~~the Issuer’s issuance of a Redemption Notice with respect to the Notes but prior to the related Redemption Date~~ November 15, 2029 and any conversions for which the relevant Conversion Date occurs ~~on or after November 15, 2025~~during a Redemption Period, the ~~Issuer~~ Company shall use the same ~~Settlement Method~~ forms and proportions of consideration for all conversions with the same Conversion Date, but the ~~Issuer~~ Company shall not have any obligation to use the same ~~Settlement Method~~ forms and proportions of consideration with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion ~~Date~~Date (or any conversions for which the relevant Conversion Date occurs during a Redemption Period or any conversions for which the relevant Conversion Date occurs on or after November 15, 2029), the ~~Issuer~~ 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~~Date (or such period, as the ~~Issuer shall deliver such Settlement Notice in writing~~ case may be) to ~~the Holders with a copy to~~ converting Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of (x) any conversions for which the relevant Conversion Date occurs ~~(x) after the date of issuance of~~ during a Redemption ~~Notice with respect to the Notes and prior to~~ Period, in the related ~~Redemption Date, in such~~ Redemption Notice or (y) any conversions of Notes for which the relevant Conversion Date occurs on or after November 15, ~~2025~~2029, no later than November 15, ~~2025~~2029) (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 ~~Issuer~~ Company does not ~~elect~~ timely make 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 ~~Issuer~~ Company shall no longer have the right to elect a Cash ~~Settlement or Physical Settlement~~ Percentage with respect to any conversion on such ~~conversion~~ Conversion Date or during such period, and the ~~Issuer~~ Company shall be deemed to have elected ~~Combination Settlement in~~ a Cash Percentage of 0% 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 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 Issuer 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~~conversion. (iv) The ~~cash, shares of Common Stock or combination of cash and shares of Common Stock in respect of any conversion of Notes (the “~~Daily Settlement ~~Amount”) shall be computed as follows: (A) if the Issuer elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement~~Amounts, the Issuer shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date (and cash in lieu of fractional shares as provided herein); (B) if the Issuer elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Issuer 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 40 consecutive Trading Days during the related Observation Period; and (C) if the Issuer elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Issuer 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 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 ~~Issuer~~ Company promptly following the last day of the Observation Period. Promptly after (and in any event within one Business Day following the last day of the Observation Period) such determination of the Daily Settlement ~~Amounts or~~ Amounts, Daily Net Settlement Amounts, the Daily Conversion Values~~, as the case may be~~, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the ~~Issuer~~ 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~~, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section 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 and, if required, pay funds equal to the interest payable on the next Special Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) ~~and any taxes payable as described in Section 14.02(d)~~ and, if required, pay all transfer or similar taxes, if any, pursuant to Section 14.02(e) (and ~~therefore~~ the exercise of such ~~Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its~~ conversion ~~rights~~rights shall be irrevocable) and (ii) in the case of a Physical Note (or a Global Note processed outside of DTC) (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 ~~or by facsimile~~ 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 Obligation to be registered, (2) surrender such Notes, duly endorsed to the ~~Issuer~~ 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~~ Special Interest payable on the next Special Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and ~~any taxes payable as described in Section 14.02(d~~(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 ~~Issuer~~ Company of any conversion pursuant to this 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 Repurchase Notice or Fundamental Change Repurchase Notice to the ~~Issuer~~ Company in respect of such Notes and has not validly withdrawn such Repurchase Notice or Fundamental Change Repurchase Notice in accordance with 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. (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 14.03(b) and Section 14.07(a), the Issuer 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 Issuer elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer 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 shares of Common Stock are due to a converting ~~Holders~~Holder, the ~~Issuer~~ Company shall issue or cause to be issued, and deliver ~~to the Conversion Agent or~~ to such Holder, or such Holder’s nominee or nominees, ~~certificates or a book-entry transfer through the Depositary for~~ the full number of shares of Common Stock to which such Holder shall be ~~entitled~~ entitled, in book-entry format through the Depositary, in satisfaction of the ~~Issuer~~Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the ~~Issuer~~ Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the ~~Issuer~~ 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 ~~Issuer~~ Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common 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 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 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The ~~Issuer~~ 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes~~. The ~~Issuer~~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 ~~not including~~excluding, the relevant Conversion Date. As a result, accrued and unpaid ~~interest~~Special Interest, if any, to, but ~~not including~~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 Stock, accrued and unpaid ~~interest~~ Special Interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a ~~Regular~~ Special Interest Record Date but prior to the open of business on the immediately following Special Interest Payment Date, Holders of such Notes as of the close of business on such ~~Regular~~ Special Interest Record Date ~~shall~~ will receive the full amount of ~~interest~~ Special Interest payable on such Notes on ~~the corresponding~~ such Special Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of business on any ~~Regular~~ Special Interest Record Date to the open of business on the immediately following Special Interest Payment Date must be accompanied by funds equal to the amount of ~~interest~~ Special Interest payable on the Notes so ~~converted~~converted on the corresponding Special Interest Payment Date (regardless of whether the converting Holder was the Holder of record on the corresponding Special Interest Record Date); provided 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) for conversions following the Special Interest Record Date immediately preceding the Repurchase Date and prior to the Repurchase Date; (3) if the ~~Issuer~~ Company has specified a ~~Redemption~~ Fundamental Change Repurchase Date that is after a ~~Regular~~ Special Interest Record Date and on or prior to the Business Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made~~Special Interest Payment Date; (34) if the ~~Issuer~~ 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~~ second Trading Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made;~~ Special Interest Payment Date or (45) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record at the close of business on the ~~Regular~~ Special Interest Record Date immediately preceding the Maturity ~~Date or~~ Date, the Repurchase Date, any Redemption Date and any Fundamental Change Repurchase Date described in clause (3) above shall receive the full ~~interest~~ Special Interest payment due on the Maturity Date, the Repurchase Date, the Fundamental Change Repurchase Date or ~~such~~ the Redemption ~~Date, as applicable,~~ Date in cash regardless of whether their Notes have been ~~converted~~ converted, redeemed and/or repurchased, as applicable, following such ~~Regular~~ Special Interest Record Date. (i) The Person in whose name ~~any~~ the shares of Common Stock ~~delivered~~ shall be issuable upon conversion ~~is registered~~ shall be ~~deemed to be the holder~~ treated as a stockholder of record ~~of such shares~~ as of the close of business on the ~~relevant Conversion Date (in the case of Physical Settlement) or the~~ last Trading Day of the relevant Observation ~~Period (in the case of 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 as of the time immediately prior to the close of business on the Conversion Date~~conversion. (j) The ~~Issuer~~ Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common 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 ~~Issuer~~ Company has elected (or is deemed to have elected) ~~Combination Settlement~~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 ~~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 shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Sources: Indenture (Microchip Technology Inc)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the ~~Issuer~~ 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 Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~November 15~~February 1, ~~2025~~2026, and all conversions of Called Notes for which the relevant Conversion Date occurs ~~after the Issuer’s issuance of a Redemption Notice with respect to the Notes and prior to~~ during the related Redemption ~~Date~~Period, shall be settled using the same Settlement Method. (ii) Except for any conversions of Called Notes for which the relevant Conversion Date occurs ~~after the Issuer’s issuance of a Redemption Notice with respect to the Notes but prior to~~ during the related Redemption ~~Date~~ Period, and any conversions for which the relevant Conversion Date occurs on or after ~~November 15~~February 1, ~~2025~~2026, the ~~Issuer~~ Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the ~~Issuer~~ 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~~Date (or any conversion for which the relevant Conversion Date occurs on or after February 1, 2026, and all conversions of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period), the ~~Issuer~~ Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion ~~Date~~Date (or such period, as the case may be), the ~~Issuer~~ Company shall deliver such Settlement Notice ~~in writing~~ to ~~the Holders with a copy to~~ converting Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of (x) any conversions of Called Notes 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~~ during the related Redemption ~~Date~~Period, in such ~~Redemption~~ Notice of Redemption, or (y) any conversion of Notes for which the relevant Conversion Date occurs on or after ~~November 15~~February 1, ~~2025~~2026, no later than ~~November 15~~February 1, ~~2025~~2026). If the ~~Issuer~~ Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the ~~Issuer~~ Company shall no longer have the right to elect Cash Settlement or Physical Settlement ~~with respect to such conversion~~ and the ~~Issuer~~ 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 ~~Issuer~~ 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, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to February 1, 2026, at its option, elect to irrevocably fix the Settlement Method to any Settlement Method that the Company is then permitted to elect, including Combination Settlement with a Specified Dollar Amount per $1,000 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 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 will, after the date of such election inform Holders converting their Notes, the Trustee and the Conversion Agent (if other than the Trustee) of such Specified Dollar Amount no later than the relevant 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. An irrevocable election will apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such notice; provided, however, that no such election will affect any Settlement Method theretofore elected (or deemed to be elected) with respect to any Note. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(j). However, the Company may nonetheless choose to execute such an amendment at its option. If the Company irrevocably fixes the Settlement Method pursuant to the provisions described in the preceding paragraph, then, concurrently with providing notice to Holders of Notes of such election, the Company will 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 Stock or combination of cash and shares of Common Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the ~~Issuer~~ 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 Stock equal to the Conversion Rate in effect on the Conversion ~~Date (and cash in lieu of fractional shares as provided herein)~~Date; (B) if the ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the ~~Issuer~~ 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 40 consecutive Trading Days during the related Observation Period; and (C) if the ~~Issuer~~ Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the ~~Issuer~~ 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 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 ~~Issuer~~ 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 Stock, the ~~Issuer~~ 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 Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to 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 14.02(h) and any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) 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 ~~or by facsimile~~ 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 Obligation to be registered, (2) surrender such Notes, duly endorsed to the ~~Issuer~~ 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 14.02(h~~) and any taxes payable as described in Section 14.02(d) or Section 14.02(e~~). The Trustee (and if different, the Conversion Agent) shall notify the ~~Issuer~~ Company of any conversion pursuant to this 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 ~~Issuer~~ Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with 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. (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 14.03(b) and Section 14.07(a), the ~~Issuer~~ 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 ~~Issuer~~ Company elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the ~~Issuer~~ 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 shares of Common Stock are due to a converting ~~Holders~~Holder, the ~~Issuer~~ 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 Stock to which such Holder shall be ~~entitled~~ entitled, in book-entry format through the Depositary, in satisfaction of the ~~Issuer~~Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the ~~Issuer~~ Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the ~~Issuer~~ 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 ~~Issuer~~ Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common 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 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 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The ~~Issuer~~ 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes~~. The ~~Issuer~~Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common 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 ~~shall~~ will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the ~~Issuer~~ Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the ~~Business~~ second Scheduled Trading Day ~~immediately~~ following the ~~date on which the~~ corresponding ~~interest payment is made~~Interest Payment Date; (3) if the ~~Issuer~~ 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 ~~date on which the~~ corresponding ~~interest payment is made~~Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date or any Redemption Date shall receive the full interest payment due on the Maturity Date or such Redemption ~~Date, as applicable,~~ Date in cash regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name ~~any~~ the shares of Common Stock ~~delivered~~ shall be issuable upon conversion ~~is registered~~ shall be ~~deemed to be the holder~~ treated as a stockholder of record ~~of such shares~~ as of the close of business on the relevant Conversion Date (in if the ~~case of~~ Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (in if the ~~case of~~ Company elects 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 as of the time immediately prior to the close of business on the Conversion Date. (j) The Issuer shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common 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 Issuer has elected (or is deemed to have elected) Combination Settlement, the full number of 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 shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Sources: Indenture (Avalara, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, on the ~~Issuer~~ second Business Day immediately following the last Trading Day of the relevant Observation Period, 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 (~~a “~~Cash Settlement”), shares~~ Settlement Amount” equal to the sum of ~~Common Stock~~the Daily Settlement Amounts for each of the 40 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 Stock in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~November~~ August 15, ~~2025, and all conversions for which the relevant Conversion Date occurs after the Issuer’s issuance of~~ 2026 or during a Redemption ~~Notice with respect to the Notes and prior to the related Redemption Date,~~ Period shall be settled using the same ~~Settlement Method. (ii)~~ forms and amounts of consideration. Except for ~~any conversions for which the relevant Conversion Date occurs after the Issuer’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 ~~November~~ August 15, ~~2025~~2026 or during a Redemption Period, the ~~Issuer~~ Company shall use the same ~~Settlement Method~~ forms and amounts of consideration for all conversions with the same Conversion Date, but the ~~Issuer~~ 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~~Date (or applicable period, as the case may be), the ~~Issuer~~ Company elects to ~~deliver~~ settle all or a ~~notice (the “Settlement Notice”)~~ portion of its Conversion Obligation in excess of the ~~relevant Settlement Method~~ principal portion of the Notes being converted in cash in respect of such Conversion ~~Date~~Date (or such period, as the case may be), the ~~Issuer~~ Company shall ~~deliver such Settlement Notice in writing to the Holders with a copy to~~ inform converting Holders, the Trustee and the Conversion Agent (if other than the Trustee) of such election (the “Settlement Notice”) no later than the close of business on the Trading Day immediately following the ~~relevant~~ related Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs (x) ~~after the date of issuance of~~ during a Redemption ~~Notice with respect to the Notes and prior to the related Redemption Date~~Period, in such Redemption Notice or (y) on or after ~~November~~ August 15, ~~2025~~2026, no later than ~~November~~ August 15, ~~2025~~2026) and the Company shall indicate in such Settlement Notice the percentage of each share issuable upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”). If the ~~Issuer~~ Company does not elect a ~~Settlement Method~~ Cash Percentage prior to the relevant deadline set forth in the immediately preceding sentence, the ~~Issuer~~ Company shall no longer have the right to elect a Cash ~~Settlement or Physical Settlement~~ Percentage with respect to such conversion or during such period and the ~~Issuer~~ Company shall ~~be deemed to have elected Combination Settlement~~ settle its Conversion Obligation by paying cash in respect of the principal portion of the converted Notes and delivering shares of Common Stock in respect of the remainder, if any, of its Conversion ~~Obligation~~Obligation in excess of the aggregate principal portion of the Notes being converted as set forth herein. Prior to August 15, 2026 (other than during a Redemption Period), the Company may, at its election, by notice to Holders, the Trustee and the ~~Specified Dollar Amount~~ Conversion Agent (if other than the Trustee) in accordance with the provisions of this Indenture, elect to satisfy its Conversion Obligation with respect to all future conversions of Notes with a Conversion Date subsequent to the date of the delivery of such notice through any Cash Percentage specified in such notice per $1,000 principal amount of Notes to be converted (such election, an “Irrevocable Settlement Election”); provided that any such election that is made during a Redemption Period (but after the Redemption Notice Date) will not be applicable to conversions with Conversion Dates that occur during such Redemption Period. For the avoidance of doubt, such an irrevocable election, if made, shall be ~~equal~~ effective without the need to ~~$1,000~~amend this Indenture or the Notes, including pursuant to Section 10.01(1). ~~Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement~~However, the ~~relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Issuer delivers a Settlement Notice electing Combination Settlement in respect of~~ Company may nonetheless choose to execute such an amendment at 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 $1,000option. (ivii) The cash, shares of Common Stock or combination of cash and shares of Common Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Issuer elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Issuer shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date (and cash in lieu of fractional shares as provided herein); (B) if the Issuer elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Issuer 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 40 consecutive Trading Days during the related Observation Period; and (C) if the Issuer elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Issuer 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~~ (if applicable), the ~~40 consecutive Trading Days during the related Observation Period. (v) The~~ Daily Net Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the ~~Issuer~~ Company promptly following the last day of the Observation Period. Promptly and in any event within one Business Day following the last day of the Observation Period after such determination of the Daily Settlement Amounts, 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 Stock, the ~~Issuer~~ 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 the amount of cash payable in lieu of delivering fractional shares of Common Stock, subject to Applicable Procedures. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to 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 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 14.02(h) ~~and any taxes payable as described in Section 14.02(d)~~ and, if required, pay all transfer or similar taxes, if any, pursuant to Section 14.02(e) (and ~~therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) and (ii)~~ in the case of a Physical Note or a Global Note not approved for processing through the Depositary, (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a ~~facsimile thereof)~~ facsimile, PDF or other electronic transmission thereof (a “Notice of Conversion”) at the office of the Conversion Agent ~~or by facsimile~~ 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 Obligation to be registered, (2) surrender such Notes, duly endorsed to the ~~Issuer~~ 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~~ 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(h) and ~~any taxes payable as described in Section 14.02(d~~(5) if required, pay all transfer or similar taxes, if any, pursuant to Section 14.02(e). The Trustee (and if different, the Conversion Agent) shall promptly notify the ~~Issuer~~ Company of any conversion pursuant to this Article ~~14 on the Conversion Date for such conversion~~14. 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 ~~Issuer~~ Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with 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. (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 14.03(b) and Section 14.07(a), the ~~Issuer~~ 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 Issuer elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer 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 shares of Common Stock are due to a converting ~~Holders~~Holder, the ~~Issuer~~ Company shall issue or cause to be issued, and deliver ~~to the Conversion Agent or~~ to such Holder, or such Holder’s nominee or nominees, ~~certificates or a book-entry transfer through the Depositary for~~ the full number of shares of Common Stock to which such Holder shall be ~~entitled~~ entitled, in book-entry format through the Depositary, in satisfaction of the ~~Issuer~~Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the ~~Issuer~~ Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the ~~Issuer~~ 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 ~~Issuer~~ Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common 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~~ Company acting through its Common Stock transfer agent may refuse to deliver the certificates representing the shares of Common 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~~sentence is paid. (f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The ~~Issuer~~ 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 ~~Issuer shall~~ Company will not adjust the Conversion Rate for any accrued and unpaid ~~interest on any converted Notes~~Special Interest. The ~~Issuer~~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 ~~not including~~excluding, the relevant Conversion Date. As a result, accrued and unpaid ~~interest~~Special Interest, if any, to, but ~~not including~~excluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of ~~Notes~~ Notes, whether into cash or into a combination of cash and shares of Common Stock, accrued and unpaid ~~interest~~ Special Interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a ~~Regular~~ Special Interest Record Date but prior to the open of business on the immediately following Special Interest Payment Date, Holders of such Notes as of the close of business on such ~~Regular~~ Special Interest Record Date ~~shall~~ will receive the full amount of ~~interest~~ Special Interest payable on such Notes on ~~the corresponding~~ such Special Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of business on any ~~Regular~~ Special Interest Record Date to the open of business on the immediately following Special Interest Payment Date must be accompanied by funds equal to the amount of ~~interest~~ Special Interest payable on the Notes so ~~converted~~converted on the corresponding Special Interest Payment Date (regardless of whether the converting Holder was the Holder of record on the corresponding Special Interest Record Date); provided 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 ~~Issuer~~ Company has specified a ~~Redemption~~ Fundamental Change Repurchase Date that is after a ~~Regular~~ Special Interest Record Date and on or prior to the Business Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made~~Special Interest Payment Date; (3) if the ~~Issuer~~ Company has specified a ~~Fundamental Change Repurchase~~ Redemption Date that is after a ~~Regular~~ Special Interest Record Date and on or prior to the second Business Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made;~~ Special Interest Payment Date or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts ~~exists~~ exist at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the ~~Regular~~ Special Interest Record Date immediately preceding the Maturity ~~Date or~~ Date, any Redemption Date and any Fundamental Change Repurchase Date described in clause (2) above shall receive the full interest payment due on the Maturity Date or ~~such Redemption Date, as applicable,~~ other applicable Special Interest Payment Date in cash regardless of whether their Notes have been ~~converted~~ converted, redeemed and/or repurchased, as applicable, following such ~~Regular~~ Special Interest Record Date. (i) The Person in whose name ~~any~~ the shares of Common Stock ~~delivered~~ shall be issuable upon conversion ~~is registered~~ shall be ~~deemed to be the holder~~ treated as a stockholder of record ~~of such shares~~ as of the close of business on the ~~relevant Conversion Date (in the case of Physical Settlement) or the~~ last Trading Day of the relevant Observation ~~Period (in the case of 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 as of the time immediately prior to the close of business on the Conversion Date~~conversion. (j) The ~~Issuer~~ Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common 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 Issuer has elected (or is deemed to have elected) Combination Settlement~~, the full number of 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 shares remaining after such computation shall be paid in cash. (k) Whenever the Conversion Rate is adjusted as herein provided, the Company shall promptly file with the Trustee (and the Conversion Agent if not the Trustee) an Officer’s Certificate setting forth (i) the adjusted Conversion Rate, (ii) the subsection of this Section 14.04 pursuant to which such adjustment has been made, showing in reasonable detail the facts upon which such adjustment is based and (iii) the date as of which such adjustment is effective (which certificates shall be conclusive evidence of the accuracy of such adjustment absent manifest error). Unless and until a Responsible Officer of the Trustee shall have received such Officer’s Certificate, the Trustee shall not be deemed to have knowledge of any adjustment of the Conversion Rate and may assume without inquiry that the last Conversion Rate of which it has knowledge is still in effect. Promptly after delivery of such certificate, the Company shall prepare a notice of such adjustment of the Conversion Rate setting forth the adjusted Conversion Rate and the date on which each adjustment becomes effective and shall deliver such notice of such adjustment of the Conversion Rate to each Holder (copying the Trustee and Conversion Agent). Failure to deliver such notice shall not affect the legality or validity of any such adjustment.

Appears in 1 contract

Sources: Indenture (3d Systems Corp)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this ~~Section~~ ‎Section 14.02, ~~Section~~ ‎Section 14.03(b) and ~~Section~~ ‎Section 14.07(a), upon conversion of any Note, the Issuer 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 Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j‎(j) of this ~~Section~~ ‎Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j‎(j) of this ~~Section~~ ‎Section 14.02 (“Combination Settlement”), at its election, as set forth in this ~~Section~~ ‎Section 14.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~November 15~~January 1, ~~2025~~2023, and all conversions for which the relevant Conversion Date occurs after the Issuer’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 Issuer’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 ~~November 15~~January 1, ~~2025~~2023, the Issuer shall use the same Settlement Method for all conversions with the same Conversion Date, but the Issuer 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, the Issuer elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date, the Issuer shall deliver such Settlement Notice in writing to the Holders with a copy to the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of 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 ~~November 15~~January 1, ~~2025~~2023, no later than ~~November 15~~January 1, ~~2025~~2023). If the Issuer does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Issuer shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to such conversion and the Issuer 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 Issuer 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. (iv) The cash, shares of Common Stock or combination of cash and shares of Common Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Issuer elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Issuer shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date (and cash in lieu of fractional shares as provided herein); (B) if the Issuer elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Issuer 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 40 20 consecutive Trading Days during the related Observation Period; and (C) if the Issuer elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Issuer 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 40 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 Issuer 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 Stock, the Issuer 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 Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to ~~Section~~ ‎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~~ ‎Section 14.02(h) and any taxes payable as described in ~~Section 14.02(d~~‎Section 14.02‎(d) or ~~Section~~ ‎Section 14.02(e~~) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights~~) 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 or by facsimile 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 Obligation to be registered, (2) surrender such Notes, duly endorsed to the Issuer 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~~ ‎Section 14.02(h) and any taxes payable as described in ~~Section 14.02(d~~‎Section 14.02‎(d) or ~~Section~~ ‎Section 14.02(e). The Trustee (and if different, the Conversion Agent) shall notify the Issuer of any conversion pursuant to this ~~Article~~ ‎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 Issuer in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with ~~Section~~ ‎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. (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~~ ‎Section 14.03(b) and ~~Section~~ ‎Section 14.07(a), the Issuer 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 Issuer elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer 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 shares of Common Stock are due to converting Holders, the Issuer shall issue or cause to be issued, and deliver to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common Stock to which such Holder shall be entitled in satisfaction of the Issuer’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Issuer 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 Issuer 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 Issuer shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common 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 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~~ ‎Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Issuer 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes~~. The Issuer’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common 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 shall receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Issuer has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the date on which the corresponding interest payment is made; (3) if the Issuer 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 date on which the corresponding interest payment is made; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date or any Redemption Date shall receive the full interest payment due on the Maturity Date or such Redemption Date, as applicable, regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name any shares of Common Stock delivered upon conversion is registered shall ~~be deemed to be~~ become the holder of record of such shares as of the close of business on the relevant Conversion Date (in the case of Physical ~~Settlement~~Settlement where the Notes are converted on or prior to the close of business on the Business Day immediately preceding the Regular Record Date immediately preceding the Maturity Date), the second Scheduled Trading Day immediately preceding the Maturity Date (in the case of Physical Settlement where the Notes are converted after the close of business on the Business Day immediately preceding the Regular Record Date immediately preceding the Maturity Date) or the last Trading Day of the relevant Observation Period (in the case of 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 as of the time immediately prior to the close of business on the Conversion Date~~conversion. (j) The Issuer shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common 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 Issuer has elected (or is deemed to have elected) Combination Settlement, the full number of 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 shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Sources: First Supplemental Indenture (Intercept Pharmaceuticals Inc)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this ~~Section~~ ‎Section 14.02, ~~Section~~ ‎Section 14.03(b) and ~~Section~~ ‎Section 14.07(a), upon conversion of any Note, the ~~Issuer~~ Company shall pay ~~or deliver~~and, ~~as the case may be~~if applicable, deliver to the converting Holder, in respect of each $1,000 in principal amount of Notes being converted, ~~cash (~~a “~~Cash Settlement”), shares~~ Settlement Amount” equal to the sum of ~~Common Stock~~the Daily Settlement Amounts for each of the 50 Trading Days during the relevant Observation Period, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j‎(j) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section ‎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 close of business on ~~or after November 15, 2025~~the Scheduled Trading Day immediately preceding the related Redemption Date, and all conversions for which the relevant Conversion Date occurs on or after ~~the Issuer’s issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date~~April 15, 2029 shall be settled using the same ~~Settlement Method. (ii)~~ Cash Percentage. Except for any conversions for which the relevant Conversion Date occurs after the ~~Issuer~~Company’s issuance of a Notice of Redemption ~~Notice~~ with respect to the Notes but prior to the close of business on the Scheduled Trading Day immediately preceding the related Redemption Date and any conversions for which the relevant Conversion Date occurs on or after ~~November~~ April 15, ~~2025~~2029, the ~~Issuer~~ Company shall use the same ~~Settlement Method~~ Cash Percentage for all conversions with the same Conversion Date, but the ~~Issuer~~ Company shall not have any obligation to use the same ~~Settlement Method~~ Cash Percentage with respect to conversions with different Conversion Dates~~. (iii)~~ . If, in respect of any Conversion ~~Date~~Date (or one of the periods described in the third immediately succeeding set of parentheses, as the case may be), the ~~Issuer~~ Company elects to ~~deliver~~ settle all or a ~~notice~~ portion of its Conversion Obligation in excess of the principal amount of the Notes being converted in cash in respect of such Conversion Date (or such period, as the case may be), the Company shall inform converting Holders of such election (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date, the Issuer shall deliver such Settlement Notice in writing to the Holders with a copy to the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Trading Day immediately following the ~~relevant~~ related Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs (xi) after the date of issuance of a Notice of Redemption ~~Notice~~ with respect to the Notes and prior to the close of business on the Scheduled Trading Day immediately preceding the related Redemption Date, in such Notice of Redemption ~~Notice~~ or (yii) on or after ~~November~~ April 15, ~~2025~~2029, no later than ~~November~~ April 15, ~~2025~~2029) and the Company shall indicate in such Settlement Notice the percentage of the consideration due upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”). If the ~~Issuer~~ Company does not ~~elect a Settlement Method prior to the deadline set forth~~ timely make such an election as described in the immediately preceding sentence, the ~~Issuer~~ Company shall no longer have the right to elect a Cash ~~Settlement or Physical Settlement with respect to such conversion and~~ Percentage, the ~~Issuer~~ Company shall be deemed to have elected ~~Combination Settlement~~ a Cash Percentage of 0% and the Company shall 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 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 Issuer 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. (iv) The cash, shares of Common Stock or combination of cash and delivering shares of Common Stock in respect of ~~any conversion~~ the remainder, if any, of ~~Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Issuer elects to satisfy~~ its Conversion Obligation in ~~respect~~ excess of ~~such conversion by Physical Settlement,~~ the ~~Issuer shall deliver to~~ aggregate principal portion of the ~~converting Holder in respect of each $1,000 principal amount of~~ Notes being converted ~~a number~~ as set forth herein (subject to Section 14.02(j)). At the time that the Company informs the Holders of ~~shares of Common Stock equal~~ any election pursuant to the ~~Conversion Rate in effect on~~ second immediately preceding sentence, the Company shall send a copy of the Settlement Notice to the Trustee and the Conversion ~~Date~~ Agent (if other than the Trustee). For the avoidance of doubt, failure to deliver a Settlement Notice to the Trustee or the Conversion Agent (if other than the Trustee) shall not affect the right of the Company to elect a Cash Percentage or the validity or sufficiency of any such election made in accordance with the second and ~~cash in lieu of fractional shares as provided herein);~~third immediately preceding sentences. (Bii) ~~if the Issuer elects to satisfy its Conversion Obligation in respect~~ For any conversion of ~~such conversion by Cash Settlement~~Notes, the ~~Issuer shall pay to~~ Daily Settlement Amounts, the ~~converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of~~ Daily Net Settlement Amounts, the Daily Conversion Values ~~for each of~~ and the 40 consecutive Trading Days during the related Observation Period; and (C) if the Issuer elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Issuer 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 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 ~~Issuer~~ Company promptly following the last day of the relevant Observation Period. Promptly after such determination of the Daily Settlement ~~Amounts or~~ Amounts, the Daily Net Settlement Amounts, the Daily Conversion ~~Values~~Values and the Settlement Amount, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the ~~Issuer~~ 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~~Values and the Settlement Amount, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section 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 any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) 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 ~~or by facsimile~~ 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 Obligation to be registered, (2) surrender such Notes, duly endorsed to the ~~Issuer~~ Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the corporate trust 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) ~~and any taxes payable as described in Section 14.02(d)~~ 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 ~~Issuer~~ Company of any conversion pursuant to this 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 ~~Issuer~~ Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with 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. (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~~ ‎Section 14.03(b) and ~~Section~~ ‎Section 14.07(a), the ~~Issuer~~ Company shall pay ~~or deliver~~and, ~~as the case may be~~if applicable, deliver the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Issuer elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer 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 relevant Observation Period~~, in the case of any other Settlement Method~~. If any shares of Common Stock are due to a converting ~~Holders~~Holder, the ~~Issuer~~ 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 Stock to which such Holder shall be ~~entitled~~ entitled, in book-entry format through the Depositary, in satisfaction of the ~~Issuer~~Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the ~~Issuer~~ Company shall execute ~~and~~ 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 ~~Issuer~~ Company, the Conversion Agent or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the ~~Issuer~~ Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue or delivery of any shares of Common 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 or refuse to instruct the stock transfer agent to deliver the certificates representing the shares of Common 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 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The ~~Issuer~~ 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes~~. The ~~Issuer~~Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of ~~Notes into a combination of cash and shares of Common Stock~~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, Holders of such Notes as of the close of business on such Regular Record Date ~~shall~~ will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so ~~converted~~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 ~~Issuer~~ Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made~~Interest Payment Date; (3) if the ~~Issuer~~ 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 ~~date on which the~~ corresponding ~~interest payment is made~~Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity ~~Date or~~ Date, any Redemption Date ~~shall~~ described in clause (2) above or any Fundamental Change Repurchase Date described in clause (3) above shall, in each case, receive the full interest payment due on the Maturity Date or ~~such Redemption~~ the applicable Interest Payment Date, as ~~applicable~~the case may be, in cash regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name ~~any~~ the shares of Common Stock ~~delivered~~ shall be issuable upon conversion ~~is registered~~ shall be ~~deemed to be the holder~~ treated as a stockholder of record ~~of such shares~~ as of the close of business on the ~~relevant Conversion Date (in the case of Physical Settlement) or the~~ last Trading Day of the ~~relevant~~ related Observation ~~Period (in the case of 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 as of the time immediately prior to the close of business on the Conversion Date~~conversion. (j) The ~~Issuer~~ Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common 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 Issuer has elected (or is deemed to have elected) Combination Settlement~~, the full number of shares that shall be issued upon conversion ~~thereof~~ thereof, if any, shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Sources: Indenture (Repay Holdings Corp)

Appears in 1 contract

Sources: Indenture (Nova Measuring Instruments LTD)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the ~~Issuer~~ 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”), ~~shares of Common Stock,~~ ADSs together with cash, if applicable, in lieu of delivering any fractional ~~share of Common Stock~~ ADSs (“Fractional ADSs”) (in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”)) or a combination of cash and ~~shares of Common Stock~~ADSs, together with cash, if applicable, in lieu of delivering any fractional ~~share of Common Stock~~ ADS in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, subject to the Holder’s election to receive Ordinary Shares in lieu of such ADSs, as set forth in this Section 14.02. (i) All conversions for which the relevant Conversion Date occurs ~~on or after November 15, 2025, and all conversions for which the relevant Conversion Date occurs~~ after the ~~Issuer~~Company’s issuance of a Redemption Notice with respect to the Notes and prior to the close of business on the third Scheduled Trading Day prior to the related Redemption Date, ~~shall~~ as applicable, and all conversions for which the relevant Conversion Date occurs on or after the 45th Scheduled Trading Day immediately preceding the stated Maturity Date will be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs after the ~~Issuer~~Company’s issuance of a Redemption Notice with respect to the Notes but prior to the close of business on the third Scheduled Trading Day prior to the related Redemption ~~Date~~ Date, as applicable, and any conversions for which the relevant Conversion Date occurs on or after ~~November 15, 2025,~~ the ~~Issuer~~ 45th Scheduled Trading Day immediately preceding the stated Maturity Date the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the ~~Issuer~~ Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs after the date of issuance of a related Redemption Notice with respect to the Notes and prior to the close of business on the second Scheduled Trading Day prior to the related Redemption Date, in such Redemption Notice or on or after the ~~Issuer~~ 45th Scheduled Trading Day immediately preceding the Maturity Date, no later than the 45th Scheduled Trading Day immediately preceding the Maturity Date, 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~~Date (or such period, as the ~~Issuer shall deliver such Settlement Notice in writing~~ case may be) to ~~the Holders with a copy to~~ converting 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 prior to the related Redemption ~~Date,~~ Date in such Redemption Notice or ~~(y)~~ on or after ~~November 15, 2025~~the 45th Scheduled Trading Day immediately preceding the Maturity Date, no later than ~~November 15~~the 45th Scheduled Trading Day immediately preceding the Maturity Date) (in each case, ~~2025~~the “Settlement Method Election Deadline”). If the ~~Issuer~~ Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the ~~Issuer~~ Company shall no longer have the right to elect Cash Settlement or Physical Settlement ~~with respect to such conversion~~ and the ~~Issuer~~ Company shall be deemed to have elected ~~Combination~~ Physical Settlement in respect of ~~its~~ the Company’s Conversion ~~Obligation~~Obligation (such settlement method, ~~and~~ the ~~Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000~~“Default Settlement Method” initially elected by the Company). 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 ~~Issuer~~ Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $US$1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $US$1,000 principal amount of Notes shall be deemed to be $US$1,000. (iv) The Company may, by written notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee), prior to the 45th Scheduled Trading Day immediately preceding the Maturity Date, change the Default Settlement Method or elect to irrevocably fix the Settlement Method to any Settlement Method that the Company is then permitted to elect, including Combination Settlement with a Specified Dollar Amount per US $1,000 principal amount of Notes of US$1,000 or with an ability to continue to set the Specified Dollar Amount per US $1,000 principal amount of Notes at or above any specific amount set forth in such election notice, that will apply to all Note conversions with a Conversion Date that is on or after the date the Company sends such notice. If the Company changes the Default Settlement Method or 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 US $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, notify Holders converting their Notes, the Trustee and the Conversion Agent (if other than the Trustee) in writing of such Specified Dollar Amount in respect of the relevant conversion or conversions no later than the relevant Settlement Method Election Deadline for such conversion or conversions, or, if the Company does not timely notify the Holders, the Trustee and the Conversion Agent (if other than the Trustee) of the Specified Dollar Amount, such Specified Dollar Amount shall be the specific amount set forth in the change or election notice or, if no specific amount was set forth in the change or election notice, such Specified Dollar Amount shall be deemed to be $1,000 per $1,000 principal amount of Notes. If the Company changes the Default Settlement Method or irrevocably fixes the Settlement Method, then the Company shall concurrently either post the Default Settlement Method or fixed Settlement Method, as applicable, on the Company’s website or disclose the same in a current report on Form 6-K (or any successor form) that is filed with the Commission. Notwithstanding the foregoing, no such change in the Default Settlement Method or irrevocable election will affect any Settlement Method theretofore elected (or deemed to be elected) with respect to any Conversion Date pursuant to this Section 14.02. For the avoidance of doubt, such change or election (as the case may be), if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.02(a). However, the Company may nonetheless choose to execute such an amendment at the Company’s option. (v) Subject to Section 14.03 and Section 14.04, the cash, ~~shares of Common Stock~~ ADSs or a combination of cash and ~~shares of Common Stock~~ ADSs, as applicable, in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the ~~Issuer~~ Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the ~~Issuer~~ Company shall deliver to the converting Holder in respect of each $US$1,000 principal amount of Notes being converted a number of ~~shares of Common Stock~~ ADSs equal to the Conversion Rate in effect on the Conversion Date ~~(and cash in lieu of fractional shares as provided herein)~~for such conversion; (B) if the ~~Issuer~~ Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the ~~Issuer~~ 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 40 consecutive Trading Days during the related Observation Period; and (C) if the ~~Issuer~~ Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the ~~Issuer~~ 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 40 consecutive Trading Days during the related Observation Period. (vvi) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the ~~Issuer~~ 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 Stock~~ADS, the ~~Issuer~~ 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 Stock~~ADSs. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such ~~determination~~determination or the distribution of such cash payable in lieu of Fractional ADSs. (bvii) ~~Subject~~ When converting the Notes, the Holders may elect to ~~Section 14.02(e)~~receive Ordinary Shares listed on the Hong Kong Stock Exchange in lieu of any ADSs deliverable upon conversion by specifying in the relevant Notice of Conversion such election, ~~before~~ provided that such election shall apply to all (but not part) of the ADSs deliverable upon conversion. If a Holder elects to receive Ordinary Shares in lieu of any ~~Holder~~ ADSs deliverable upon conversion, and the Company elects to settle the relevant Conversion Obligation by Physical Settlement or Combination Settlement, the Company shall register in the Hong Kong Share Register the Person or Persons designated in the Notice of ~~a Note shall be entitled~~ Conversion as holder of such number of Ordinary Shares equal to ~~convert a Note as set forth above, such Holder shall~~ (i) in the case of ~~a Global Note~~Physical Settlement, ~~comply with~~ the ~~procedures~~ number of ADSs deliverable upon conversion as described above under the “Settlement Amounts” in Section 14.02(a)(v) (without taking into account any fractional ADS) multiplied by the number of Ordinary Shares then represented by one ADS immediately after the close of business as of the ~~Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment~~ relevant Conversion Date ~~to which such Holder is not entitled as set forth in Section 14.02(h) and any taxes payable as described in Section 14.02(d)~~ or ~~Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) and~~ (ii) in the case of a ~~Physical Note~~ Combination Settlement, for each of the 40 consecutive Trading Days during the related Observation Period, the number of ADSs deliverable upon conversion as described in the definition of “Daily Settlement Amount” (1without taking into account any fractional ADS) ~~complete~~in respect of such Trading Day multiplied by the number of Ordinary Shares then represented by one ADS as of the same time as the applicable Conversion Rate for such Trading Day. If the Holder has requested in the Notice of Conversion, ~~manually sign~~ to the extent permitted under applicable law and ~~deliver an irrevocable notice~~ the rules and procedures of CCASS, the Company shall take all necessary action to enable the Ordinary Shares to be delivered to such Holder’s designated Hong Kong stock account in CCASS for so long as the Ordinary Shares are listed on the Hong Kong Stock Exchange; provided that, if such Holder elects in the Notice of Conversion to receive Ordinary Shares outside of CCASS or if the restrictive legend on the Notes has not been removed prior to the Conversion ~~Agent as set forth in~~ Date, the ~~Form~~ Company shall make share certificate or certificates representing such number of ~~Notice of Conversion (or a facsimile thereof) (a “Notice of Conversion”)~~ Ordinary Shares available for collection at the office of the ~~Conversion Agent or~~ Hong Kong Share Registrar or, if so requested in the relevant Notice of Conversion, cause the Hong Kong Share Registrar to mail (at the risk, and, if sent at the Holder’s request otherwise than by ~~facsimile and state in writing therein~~ ordinary mail, at the ~~principal amount~~ expense, of ~~Notes~~ the Person to ~~be converted and the name or names (with addresses) in which~~ whom such ~~Holder wishes the~~ certificate or certificates ~~for any shares~~ are sent) such certificate or certificates to the Person and at the place specified in the Notice of ~~Common Stock~~ Conversion. If a Holder fails to ~~be delivered upon settlement of~~ elect in the Conversion ~~Obligation~~ Notice to ~~be registered~~receive Ordinary Shares in lieu of any ADSs deliverable upon conversion, (2) surrender such Notes, duly endorsed to the Issuer 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 will not ~~entitled as set forth in Section 14.02(h) and any taxes payable as described in Section 14.02(d) or Section 14.02(e). The Trustee (and if different,~~ be able to subsequently receive the ~~Conversion Agent) shall notify~~ Ordinary Shares represented by such ADSs by withdrawing such Ordinary Shares represented thereby from the Issuer of any conversion pursuant to this 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 Issuer in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with 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. (c) A Note shall be deemed to have been converted immediately ADS Depositary 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 14.03(b) and Section 14.07(a), the Issuer 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 Issuer elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer 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 shares of Common Stock are due to converting Holders, the Issuer shall issue or cause to be issued, and deliver to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common Stock to which such Holder shall be entitled in satisfaction of the Issuer’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Issuer 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 Issuer 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 Issuer shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common 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 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 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Issuer 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes. The Issuer’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common 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 shall receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Issuer has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the date on which the corresponding interest payment is made; (3) if the Issuer 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 date on which the corresponding interest payment is made; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date or any Redemption Date shall receive the full interest payment due on the Maturity Date or such Redemption Date, as applicable, regardless of whether their Notes have been converted following such Regular Record Resale Restriction Termination Date. (iviii) The Person in whose name any shares of Common Stock delivered upon conversion is registered shall be deemed to be the holder of record of such shares as of the close of business on the relevant Conversion Date (in the case of Physical Settlement) or the last Trading Day of the relevant Observation Period (in the case of 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 as of the time immediately prior to the close of business on the Conversion Date. (j) The Issuer shall not issue any fractional share of Common Stock Any ADSs deliverable upon conversion of the Notes and ~~shall instead pay cash~~ any Ordinary Shares represented thereby will, prior to the Resale Restriction Termination Date, subject to certain transfer restrictions as set forth in Section 2.05(d). Any Ordinary shares deliverable in lieu of ~~delivering~~ any ~~fractional share~~ ADSs will be, prior to the Resale Restriction Termination Date, subject to certain transfer restrictions as set forth in Section 2.05(d) and as imposed by the Hong Kong Share Registrar, and will not be able to be deposited into CCASS until such restrictions are removed. After removal of ~~Common Stock issuable~~ such restrictions on transfer and resale, any Ordinary Shares deliverable upon conversion ~~based~~ of the Notes, if any, will be fully fungible with the Ordinary Shares listed on the ~~Daily VWAP for~~ Hong Kong Stock Exchange. The Company further covenants that it will, at its cost, obtain approval to list, subject to official notice of issuance upon conversion of the ~~relevant Conversion Date (~~Notes, such Ordinary Shares on the Hong Kong Stock Exchange and register in the ~~case~~ Hong Kong Share Register in the Person or Persons designated in the Notice of ~~Physical Settlement) or based~~ Conversion as the holder of the Ordinary Shares in order to facilitate their listing and trading 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 Issuer has elected (or is deemed to have elected) Combination Settlement, the full number of 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 shares remaining after such computation shall be paid in cashHong Kong Stock Exchange.

Appears in 1 contract

Sources: Indenture (JD.com, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the ~~Issuer~~ 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 Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02. (i) All conversions for which the relevant Conversion ~~Date~~ Dates occurs (x) on or after November 151, ~~2025, and all conversions for which~~ 2024 shall be settled using the ~~relevant Conversion Date occurs after the Issuer’s issuance of~~ same Settlement Method or (y) during a Redemption ~~Notice with respect to the Notes and prior to the related Redemption Date,~~ Period shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs ~~after the Issuer’s issuance of~~ during a Redemption ~~Notice with respect to the Notes but prior to the related Redemption Date~~ Period and any conversions for which the relevant Conversion Date occurs on or after November 151, ~~2025~~2024, the ~~Issuer~~ Company shall use the same Settlement Method for all conversions ~~with~~ occurring on the same Conversion Date, but the ~~Issuer~~ 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~~Date (or in the case of any conversions occurring (x) during a Redemption Period or (y) on or after November 1, 2024), the ~~Issuer~~ Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion ~~Date~~Date (or such period, as the case may be), the ~~Issuer~~ Company shall deliver such Settlement Notice ~~in writing~~ to ~~the Holders with a copy to~~ converting Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Scheduled Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions ~~for which the relevant Conversion Date occurs~~ occurring (x) ~~after the date of issuance of~~ during a Redemption ~~Notice with respect to the Notes and prior to the related Redemption Date~~Period, in such Redemption ~~Notice~~ Notice, or (y) on or after November 151, ~~2025~~2024, no later than the close of business on Scheduled Trading Day immediately preceding November 151, ~~2025~~2024). If the ~~Issuer~~ Company does not timely elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the ~~Issuer~~ Company shall no longer have the right to elect Cash Settlement or Physical Settlement ~~with respect to~~ for such conversion on the relevant Conversion Date or during the relevant period and the ~~Issuer~~ 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 ~~Issuer~~ 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, the Company may, prior to November 1, 2024, 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; provided, however, that no such election or elimination will affect any Settlement Method theretofore elected (or deemed to be elected) with respect to any Note. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(i). (iv) The cash, shares of Common Stock or combination of cash and shares of Common Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the ~~Issuer~~ 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 Stock equal to the Conversion Rate in effect on the Conversion ~~Date (and cash in lieu of fractional shares as provided herein)~~Date; (B) if the ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the ~~Issuer~~ 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 40 consecutive Trading Days during the related Observation Period; and (C) if the ~~Issuer~~ Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the ~~Issuer~~ 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 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 ~~Issuer~~ 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 Stock, the ~~Issuer~~ 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 Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to 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 14.02(h) and any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) 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 ~~or by facsimile~~ 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 Obligation to be registered, (2) surrender such Notes, duly endorsed to the ~~Issuer~~ 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 14.02(h~~) and any taxes payable as described in Section 14.02(d) or Section 14.02(e~~). The Trustee (~~and~~ and, if different, the Conversion Agent) shall notify the ~~Issuer~~ Company of any conversion pursuant to this 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 ~~Issuer~~ Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 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. (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 14.03(b) and Section 14.07(a), the ~~Issuer~~ 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 ~~Issuer~~ Company elects Physical Settlement, or, in the case of any other Settlement ~~(provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date~~Method, ~~the Issuer 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 relevant Observation Period~~, in the case of any other Settlement Method~~. If any shares of Common Stock are due to a converting ~~Holders~~Holder, the ~~Issuer~~ Company shall issue or cause to be issued, and deliver to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common Stock to which such Holder shall be entitled in satisfaction of the ~~Issuer~~Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the ~~Issuer~~ Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the ~~Issuer~~ 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 ~~Issuer~~ Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common 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 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 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The ~~Issuer~~ 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes~~. The ~~Issuer~~Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common 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 ~~shall~~ will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Issuer has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the date on which the corresponding interest payment is made; (3) if the Issuer 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 date on which~~ succeeding the corresponding ~~interest payment~~ Interest Payment Date; (3) if the Company has specified a Redemption Date that is ~~made~~after a Regular Record Date and on or prior to the Trading Day immediately succeeding the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, any Fundamental Change Repurchase Date 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 ~~such Redemption Date, as applicable,~~ 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 Stock delivered upon conversion is registered shall be ~~deemed to be the holder~~ treated as a stockholder of record ~~of such shares~~ as of the close of business on the relevant Conversion Date (in if the ~~case of~~ Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (in if the ~~case of~~ Company elects 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 as of the time immediately prior to the close of business on the Conversion Date~~conversion. (j) The ~~Issuer~~ Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common 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 ~~Issuer~~ Company has elected (or is deemed to have elected) Combination Settlement, the full number of 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 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 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the ~~Issuer shall~~ Company 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 Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with ~~subsection (j~~Section 14.02(i) ~~of this Section 14.02~~ (“Physical Settlement”) ), or a combination of cash and shares of the Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with ~~subsection (j~~Section 14.02(i) ~~of this Section 14.02~~ (“Combination Settlement”)~~, at its election~~, as set forth in this Section 14.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~November~~ May 15, ~~2025,~~ 2025 and all conversions ~~for which the relevant Conversion Date occurs~~ occurring after the ~~Issuer’s issuance~~ date the Company issues a Notice of ~~a Redemption Notice with respect to the Notes~~ 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 after the Issuer’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 ~~November~~ May 15, ~~2025~~2025 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 ~~Issuer~~ 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 ~~Issuer~~ 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 May 15, 2025, at its option, irrevocably elect a Settlement Method and/or a Specified Dollar Amount (or a minimum Specified Dollar Amount or range of Specified Dollar Amounts), 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~~If the Company elects a Settlement Method, the ~~Issuer elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date, the Issuer~~ Company shall deliver ~~such Settlement Notice in writing~~ notice to ~~the~~ Holders ~~with a copy to the Trustee and~~ through the Conversion Agent ~~(if other than~~ of such Settlement Method the ~~Trustee)~~ Company has selected no later than the close of business on the 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 May 15, 2025, no later than May 15, 2025 or (xB) in the case of any conversions occurring after the date of issuance of a Notice of Tax Redemption ~~Notice with respect to the Notes~~ and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Tax Redemption Date, in such ~~Redemption~~ Notice ~~or (y) on or after November 15, 2025, no later than November 15, 2025~~of Tax Redemption). If the ~~Issuer~~ Company does not timely elect a Settlement ~~Method prior to the deadline set forth in the immediately preceding sentence~~Method, the ~~Issuer~~ Company shall no longer have the right to elect ~~Cash~~ Combination Settlement or Physical Settlement with respect to ~~such conversion~~ that Conversion Date and the ~~Issuer~~ 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 Issuer 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. (iviii) The cash, shares of Common Stock or combination of cash and shares of Common 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 ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the ~~Issuer~~ 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 Stock equal to the Conversion Rate ~~in effect~~ on the Conversion Date (~~and~~ plus cash in lieu of any fractional ~~shares as provided herein~~share of Common Stock issuable upon conversion); (B) if the ~~Issuer~~ Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the ~~Issuer~~ 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 40 20 consecutive VWAP Trading Days during the related Observation Period; and (C) if the ~~Issuer~~ Company elects ~~(or is deemed to have elected)~~ to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the ~~Issuer~~ 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 40 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 ~~Issuer~~ 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 Stock, the ~~Issuer~~ 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 Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (bi) ~~Subject to Section 14.02(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 14.02(h) and any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) 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 or by facsimile~~ 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 shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Issuer 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 ~~14.02(h) and any taxes payable as described in Section 14.02(d) or Section 14.02(e~~14.02(g). The Trustee (and if different, the Conversion Agent) shall notify the ~~Issuer~~ 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. ~~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 Issuer 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 (or, in the case of a Global Note, has complied with the Applicable Procedures with respect to such a withdrawal) in accordance with the terms of Section 15.03. If ~~more than one Note shall be surrendered for conversion~~ a Holder has already delivered a Fundamental Change Repurchase Notice, such Holder’s right to withdraw such notice and convert the Notes that are subject to repurchase will terminate at ~~one time by~~ the ~~same Holder, the Conversion Obligation with respect to such Notes shall be computed~~ close of business on the ~~basis of~~ Business Day immediately preceding the ~~aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered~~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 14.03(b) and Section 14.07(a), the ~~Issuer~~ 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 ~~Issuer~~ Company elects Physical ~~Settlement~~ Settlement; or (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer shall deliver the consideration due in respect of the Conversion Obligation on the Maturity Date), or on 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 Stock are due to converting Holders, the ~~Issuer~~ Company shall issue or cause to be issued, and deliver ~~to the Conversion Agent or~~ to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the ~~Depositary~~ Depositary, as the case may be, for the full number of shares of Common Stock to which such Holder shall be entitled in satisfaction of the ~~Issuer~~Company’s Conversion Obligation. (d) In case any Certificated Note shall be surrendered for partial conversion, in an Authorized Denomination, the ~~Issuer~~ Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder ~~of the Note~~ so surrendered a new Note or Notes in ~~authorized denominations~~ 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 ~~Issuer~~ 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 ~~Issuer~~ Company shall pay any documentary, stamp or similar issue or transfer tax due on the ~~issue~~ issuance of any shares of Common Stock upon ~~conversion~~conversion of such Note, 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 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 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14. (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 ~~Issuer~~ 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes~~. The ~~Issuer~~Company’s ~~settlement~~ payment or delivery, as the case may be, of the ~~full Conversion Obligation~~ Settlement Amount upon conversion of any Note shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than ~~cancelled~~canceled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common 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 shall receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so ~~converted~~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 ~~Issuer~~ Company has ~~specified~~ called the Notes for Tax Redemption on a Tax Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made;~~ Interest Payment Date; (3iii) if the ~~Issuer~~ 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 ~~date on which the~~ corresponding ~~interest payment is made~~Interest Payment Date; or or (4iv) to the extent of any ~~Defaulted Amounts~~overdue interest, if any ~~Defaulted Amounts~~ overdue interest exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, any Fundamental Change Repurchase Date or and any Tax Redemption ~~Date~~ as described in clauses (ii) and (iii) above shall receive and retain the full interest payment due on the Maturity Date or ~~such Redemption Date, as applicable,~~ other applicable Interest Payment Date regardless of whether their Notes have been converted following such Regular Record Date. (ih) The Person in whose name any shares of Common Stock delivered upon conversion is registered shall ~~be deemed to be~~ become the holder of record of such shares as of the close of business on (i) the relevant Conversion Date if the Company elects Physical Settlement or (~~in the case of Physical Settlement~~ii) or the last VWAP Trading Day of the relevant Observation Period ~~(in~~ if the ~~case of~~ Company elects 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 time immediately prior to~~ the close of business on such Regular Record Date shall have the ~~Conversion~~ right to receive the interest payable on such Interest Payment Date, in accordance with Section 14.02(g). (ji) The ~~Issuer~~ Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of ~~delivering~~ any fractional share of Common 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 ~~Issuer~~ Company has elected ~~(or is deemed to have elected)~~ Combination Settlement, the full number of 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 ~~shares~~ share remaining after such computation shall be paid in cash.

Appears in 1 contract

Sources: Indenture (Royal Caribbean Cruises LTD)

Appears in 1 contract

Sources: Indenture (Camtek LTD)

Conversion Procedure; Settlement Upon Conversion. 66 (a) Subject to this Section 14.02, Section 14.03(b), Section 14.07(a) and Section ~~14.07(a)~~14.13, upon conversion of any Note, the ~~Issuer~~ Company shall pay or and, if applicable, deliver, as the case may be, to the converting Holder, in respect of each $1,000 in principal amount of Notes being converted, ~~cash (~~a “~~Cash Settlement”), shares~~ Settlement Amount” equal to the sum of ~~Common Stock~~the Daily Settlement Amounts for each of the 40 Trading Days during the 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 14.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this 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 close of business on ~~or after November 15, 2025~~the second Scheduled Trading Day prior to the related Redemption Date, and all conversions for which the relevant Conversion Date occurs on or after ~~the Issuer’s issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date~~May 15, 2032, shall be settled using the same ~~Settlement Method. (ii)~~ Cash Percentage. Except for any conversions for which the relevant Conversion Date occurs after the ~~Issuer~~Company’s issuance of a Notice of Redemption ~~Notice~~ with respect to the Notes but prior to the close of business on the second Scheduled Trading Day prior to the related Redemption Date and any conversions for which the relevant Conversion Date occurs on or after ~~November~~ May 15, ~~2025~~2032, the ~~Issuer~~ Company shall use the same ~~Settlement Method~~ Cash Percentage for all conversions with the same Conversion Date, but the ~~Issuer~~ Company shall not have any obligation to use the same ~~Settlement Method~~ Cash Percentage with respect to conversions with different Conversion Dates~~. (iii)~~ . If, in respect of any Conversion ~~Date~~Date (or one of the periods described in the third immediately succeeding set of parentheses, as the case may be), the ~~Issuer~~ Company elects to ~~deliver~~ settle all or a ~~notice~~ portion of its Conversion Obligation in excess of the principal amount of the Notes being converted in cash in respect of such Conversion Date (or such period, as the case may be), the Company shall inform converting Holders of such election (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date, the Issuer shall deliver such Settlement Notice in writing to the Holders with a copy to the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Trading Day immediately following the ~~relevant~~ related Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs (xi) after the date of issuance of a Notice of Redemption ~~Notice~~ with respect to the Notes and prior to the close of business on the second Scheduled Trading Day prior to the related Redemption Date, in such Notice of Redemption ~~Notice~~ or (yii) on or after ~~November~~ May 15, ~~2025~~2032, no later than ~~November~~ May 15, ~~2025~~2032) and the Company shall indicate in such Settlement Notice the percentage of the consideration due upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”). If the ~~Issuer does~~ relevant Holders are not ~~elect~~ informed of a ~~Settlement Method~~ Cash Percentage prior to the deadline set forth in the immediately preceding sentence, the ~~Issuer~~ Company shall no longer have the right to elect a Cash ~~Settlement or Physical Settlement with respect to such conversion and~~ Percentage, the ~~Issuer~~ Company shall be deemed to have elected ~~Combination Settlement~~ a Cash Percentage of 0% and the Company shall 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 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 Issuer 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. (iv) The cash, shares of Common Stock or combination of cash and delivering shares of Common Stock in respect of ~~any conversion~~ the remainder, if any, of ~~Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Issuer elects to satisfy~~ its Conversion Obligation in ~~respect~~ excess of ~~such conversion by Physical Settlement,~~ the ~~Issuer shall deliver to~~ aggregate principal portion of the ~~converting Holder in respect of each $1,000 principal amount of~~ Notes being converted ~~a number~~ as set forth herein (subject to Section 14.02(j)). At the time that the Company informs the Holders of ~~shares of Common Stock equal~~ any election pursuant to the ~~Conversion Rate in effect on~~ second immediately preceding sentence, the Company shall send a copy of the Settlement Notice to the Trustee and the Conversion ~~Date~~ Agent (~~and cash in lieu~~ if other than the Trustee). For the avoidance of ~~fractional shares as provided herein);~~doubt, failure to deliver a Settlement Notice to the Trustee or the Conversion Agent (if other than the Trustee) shall not affect the right of the Company to (Bii) ~~if the Issuer elects to satisfy its Conversion Obligation in respect~~ For any conversion of ~~such conversion by Cash Settlement~~Notes, the ~~Issuer shall pay to~~ Daily Settlement Amounts, the ~~converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of~~ Daily Net Settlement Amounts, the Daily Conversion Values ~~for each of~~ and the 40 consecutive Trading Days during the related Observation Period; and (C) if the Issuer elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Issuer 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 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 ~~Issuer~~ Company promptly following the last day of the relevant Observation Period. Promptly after such determination of the Daily Settlement ~~Amounts or~~ Amounts, the Daily Net Settlement Amounts, the Daily Conversion ~~Values~~Values and the Settlement Amount, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the ~~Issuer~~ 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~~Values and the Settlement Amount, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section 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~~ 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(h) and any taxes payable as described in Section 14.02(d)~~ Error! Reference source not found. and, if required, all transfer or similar taxes, if any, pursuant to Section 14.02(e~~) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights~~) 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 ~~or by facsimile~~ 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 Obligation to be registered, (2) surrender such Notes, duly endorsed to the ~~Issuer~~ Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the corporate trust office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer ~~documents and~~ documents, (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 14.02(h~~Error! Reference source not found., and (5) ~~and any taxes payable as described in Section 14.02(d)~~ 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 ~~Issuer~~ Company of any conversion pursuant to this 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 ~~Issuer~~ Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with 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.~~of (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 14.03(b) and Section 14.07(a), the ~~Issuer~~ Company shall pay or and 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 Issuer elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer 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 relevant Observation Period~~, in the case of any other Settlement Method~~. If any shares of Common Stock are due to a converting ~~Holders~~Holder, the ~~Issuer~~ 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 Stock to which such Holder shall be ~~entitled~~ entitled, in book-entry format through the Depositary, in satisfaction of the ~~Issuer~~Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the ~~Issuer~~ Company shall execute ~~and~~ 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 ~~Issuer~~ Company, the Conversion Agent or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the ~~Issuer~~ Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue or delivery of any shares of Common 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 or refuse to instruct the stock transfer agent to deliver the certificates representing the shares of Common 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 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The ~~Issuer~~ 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~~Special Interest, if any, except as set forth ~~below,~~ below and the Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes. The Issuer’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common 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 shall receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Issuer has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the date on which the corresponding interest payment is made; (3) if the Issuer 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 date on which the corresponding interest payment is made; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date or any Redemption Date shall receive the full interest payment due on the Maturity Date or such Redemption Date, as applicable, regardless of whether their Notes have been converted following such Regular Record Date.the (i) The Person in whose name ~~any~~ the shares of Common Stock ~~delivered~~ shall be issuable upon conversion ~~is registered~~ shall be ~~deemed to be the holder~~ treated as a stockholder of record ~~of such shares~~ as of the close of business on the ~~relevant Conversion Date (in the case of Physical Settlement) or the~~ last Trading Day of the ~~relevant~~ related Observation ~~Period (in the case of 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 as of the time immediately prior to the close of business on the Conversion Date~~conversion. (j) The ~~Issuer~~ Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common 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 Issuer has elected (or is deemed to have elected) Combination Settlement,~~ the full number of shares of Common Stock 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 shares of Common Stock remaining after such computation shall be paid in cash.

Appears in 1 contract

Sources: Indenture (Centrus Energy Corp)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, on the ~~Issuer~~ 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”), shares~~ Settlement Amount” equal to the sum of ~~Common Stock~~the Daily Settlement Amounts for each of the 20 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 Stock in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~November~~ June 15, ~~2025,~~ 2030 and all conversions for which the relevant Conversion Date occurs ~~after the Issuer’s issuance of~~ during a Redemption ~~Notice with respect to the Notes and prior to the related Redemption Date,~~ Period shall be settled using the same ~~Settlement Method~~forms and proportions of consideration. (ii) Except for any conversions for which the relevant Conversion Date occurs on or after ~~the Issuer’s issuance of a Redemption Notice with respect to the Notes but prior to the related Redemption Date~~ June 15, 2030 and any conversions for which the relevant Conversion Date occurs ~~on or after November 15, 2025~~during a Redemption Period, the ~~Issuer~~ Company shall use the same ~~Settlement Method~~ forms and proportions of consideration for all conversions with the same Conversion Date, but the ~~Issuer~~ Company shall not have any obligation to use the same ~~Settlement Method~~ forms and proportions of consideration with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion ~~Date~~Date (or any conversions for which the relevant Conversion Date occurs during a Redemption Period or any conversions for which the relevant Conversion Date occurs on or after June 15, 2030), the ~~Issuer~~ 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~~Date (or such period, as the ~~Issuer shall deliver such Settlement Notice in writing~~ case may be) to ~~the Holders with a copy to~~ converting Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of (x) any conversions for which the relevant Conversion Date occurs ~~(x) after the date of issuance of~~ during a Redemption ~~Notice with respect to the Notes and prior to~~ Period, in the related Notice of Redemption ~~Date, in such Redemption Notice~~ or (y) any conversions of Notes for which the relevant Conversion Date occurs on or after ~~November~~ June 15, ~~2025~~2030, no later than ~~November~~ June 15, ~~2025~~2030) (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 ~~Issuer~~ Company does not ~~elect~~ timely make 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 ~~Issuer~~ Company shall no longer have the right to elect a Cash ~~Settlement or Physical Settlement~~ Percentage with respect to any conversion on such ~~conversion~~ Conversion Date or during such period, and the ~~Issuer~~ Company shall be deemed to have elected ~~Combination Settlement in~~ a Cash Percentage of 0% 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 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 Issuer 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~~conversion. (iv) The ~~cash, shares of Common Stock or combination of cash and shares of Common Stock in respect of any conversion of Notes (the “~~Daily Settlement ~~Amount”) shall be computed as follows: (A) if the Issuer elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement~~Amounts, the Issuer shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date (and cash in lieu of fractional shares as provided herein); (B) if the Issuer elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Issuer 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 40 consecutive Trading Days during the related Observation Period; and (C) if the Issuer elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Issuer 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 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 ~~Issuer~~ Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement ~~Amounts or~~ Amounts, Daily Net Settlement Amounts, the Daily Conversion Values~~, as the case may be~~, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the ~~Issuer~~ Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement ~~Amounts or~~ Amounts, the Dail Net Settlement Amounts, the Daily Conversion Values~~, as the case may be~~, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section 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 and, if required, pay funds equal to ~~interest~~ the Special Interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) ~~and any taxes payable as described in Section 14.02(d)~~ and, if required, pay all transfer or similar taxes, if any, pursuant to Section 14.02(e) (and ~~therefore~~ the exercise of such ~~Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its~~ conversion ~~rights~~rights shall be irrevocable) 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 ~~or by facsimile~~ 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 Obligation to be registered, (2) surrender such Notes, duly endorsed to the ~~Issuer~~ 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~~ any Special Interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and ~~any taxes payable as described in Section 14.02(d~~(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 ~~Issuer~~ Company of any conversion pursuant to this 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 ~~Issuer~~ Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with 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. (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 14.03(b) and Section 14.07(a), the Issuer 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 Issuer elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer 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 shares of Common Stock are due to a converting ~~Holders~~Holder, the ~~Issuer~~ Company shall issue or cause to be issued, and deliver ~~to the Conversion Agent or~~ to such Holder, or such Holder’s nominee or nominees, ~~certificates or a book-entry transfer through the Depositary for~~ the full number of shares of Common Stock to which such Holder shall be ~~entitled~~ entitled, in book-entry format through the Depositary, in satisfaction of the ~~Issuer~~Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the ~~Issuer~~ Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the ~~Issuer~~ 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 ~~Issuer~~ Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common 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 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 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The ~~Issuer~~ 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes~~. The ~~Issuer~~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 ~~not including~~excluding, the relevant Conversion Date. As a result, accrued and unpaid ~~interest~~Special Interest, if any, to, but ~~not including~~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 Stock, accrued and unpaid ~~interest~~ Special Interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a ~~Regular~~ Special Interest Record Date but prior to the open of business on the immediately following Interest Payment Date, Holders of such Notes as of the close of business on such ~~Regular~~ Special Interest Record Date ~~shall~~ will receive the full amount of ~~interest~~ Special Interest payable on such Notes on ~~the corresponding~~ such Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of business on any ~~Regular~~ Special 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~~ Special Interest 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 Special Interest Record Date); 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 ~~Issuer~~ Company has specified a ~~Redemption~~ Fundamental Change Repurchase Date that is after a ~~Regular~~ Special Interest Record Date and on or prior to the Business Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made~~Interest Payment Date; (3) if the ~~Issuer~~ 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~~ second Trading Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made;~~ Interest Payment Date or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record at the close of business on the ~~Regular~~ Special Interest Record Date immediately preceding the Maturity ~~Date or~~ Date, any Redemption Date and any Fundamental Change Repurchase Date described in clause (2) above shall receive the full ~~interest~~ Special Interest payment due on the Maturity Date or ~~such Redemption Date, as applicable,~~ 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~~ Special Interest Record Date. (i) The Person in whose name ~~any~~ the shares of Common Stock ~~delivered~~ shall be issuable upon conversion ~~is registered~~ shall be ~~deemed to be the holder~~ treated as a stockholder of record ~~of such shares~~ as of the close of business on the ~~relevant Conversion Date (in the case of Physical Settlement) or the~~ last Trading Day of the relevant Observation ~~Period (in the case of 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 as of the time immediately prior to the close of business on the Conversion Date~~conversion. (j) The ~~Issuer~~ Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common 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 ~~Issuer~~ Company has elected (or is deemed to have elected) ~~Combination Settlement~~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 ~~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 shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Sources: Indenture (Lyft, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) ~~Subject to this~~ Except as provided in Section ~~14.02, Section 14.03(b~~13.03(b) and Section ~~14.07(a~~13.07(a), upon conversion of any Note, on the ~~Issuer~~ third Business Day immediately following the last Trading Day of the relevant Observation Period, 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 (~~a “~~Cash Settlement”), shares~~ Settlement Amount” equal to the sum of ~~Common Stock~~the Daily Settlement Amounts for each of the 40 Trading Days during the applicable Observation Period for such Note, together with cash, if applicable, in lieu of ~~delivering~~ any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.0213.02. (i) All conversions ~~for which the relevant Conversion Date occurs~~ occurring on or after ~~November 15~~August 1, ~~2025, and all conversions for which the relevant Conversion Date occurs after the Issuer’s issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date,~~ 2018 shall be settled using the same ~~Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs after the Issuer’s issuance~~ forms and proportionate amounts of ~~a Redemption Notice with respect~~ consideration. Prior to ~~the Notes but prior to the related Redemption Date and any conversions for which the relevant Conversion Date occurs on or after November 15~~August 1, ~~2025~~2018, the ~~Issuer~~ Company shall use the same ~~Settlement Method~~ forms and proportionate amounts of consideration for all conversions ~~with~~ occurring on the same Conversion Date, but the ~~Issuer~~ Company shall not have any obligation to use the same ~~Settlement Method~~ forms and proportionate amounts with respect to conversions ~~with~~ that occur on different Conversion Dates~~. (iii) If,~~ . If the Company elects to settle all or a portion of its Conversion Obligation in ~~respect~~ excess of ~~any Conversion Date~~the principal portion of the Notes being converted in cash, the ~~Issuer elects to deliver a notice~~ Company shall inform converting Holders through the Trustee of such election (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date, the Issuer shall deliver such Settlement Notice in writing to the Holders with a copy to the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Trading Day immediately following the ~~relevant~~ related 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)~~ occurring on or after ~~November 15~~August 1, ~~2025~~2018, no later than ~~November 15~~the close of business on the Scheduled Trading Day immediately preceding August 1, ~~2025~~2018) and the Company shall indicate in such Settlement Notice the percentage of each share issuable upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”). If the ~~Issuer~~ Company does not ~~elect~~ so deliver a Settlement ~~Method~~ Notice prior to the deadline set forth in the immediately preceding sentence, the ~~Issuer~~ Company shall no longer have the right to elect a Cash ~~Settlement or Physical Settlement with respect to such conversion~~ Percentage and the ~~Issuer~~ Company shall ~~be deemed to have elected Combination Settlement~~ settle its Conversion Obligation by paying cash 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 Issuer 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. (iv) The cash, shares of Common Stock or combination of cash and shares of Common Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Issuer elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Issuer shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date (and cash in lieu of fractional shares as provided herein); (B) if the Issuer elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Issuer 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 portion of the Daily Conversion Values for each of the 40 consecutive Trading Days during the related Observation Period; and (C) if the Issuer elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Issuer shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of converted Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 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 Issuer 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~~ shares of Common Stock, ~~the Issuer 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 Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to 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 any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) 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 or by facsimile 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 Obligation to be registered, (2) surrender such Notes, duly endorsed to the Issuer 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 14.02(h) and any taxes payable as described in Section 14.02(d) or Section 14.02(e). The Trustee (and if different, the Conversion Agent) shall notify the Issuer of any conversion pursuant to this 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 Issuer in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with 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. (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 14.03(b) and Section 14.07(a), the Issuer 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 Issuer elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer 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 shares of Common Stock are due to converting Holders, the Issuer shall issue or cause to be issued, and deliver to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common Stock to which such Holder shall be entitled in satisfaction of the Issuer’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Issuer 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 Issuer 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 Issuer shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common 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 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 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Issuer 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes. The Issuer’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common Stock, ~~accrued and unpaid interest will be deemed to be paid first out~~ in respect of the ~~cash paid upon such conversion. Notwithstanding the foregoing~~remainder, if ~~Notes are converted after the close~~ any, of ~~business on a Regular Record Date, Holders of such Notes as~~ its Conversion Obligation in excess of the ~~close~~ aggregate principal portion of business on such Regular Record Date shall receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes ~~so converted; provided that no such payment shall be required~~ being converted as set forth herein. (1ii) ~~for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Issuer has specified~~ If a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the date on which the corresponding interest payment is made; (3) if the Issuer 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 date on which the corresponding interest payment is made; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date or any Redemption Date shall receive the full interest payment due on the Maturity Date or such Redemption Date, as applicable, regardless of whether their Holder’s Notes have been converted following such Regular Record Date. (i) The Person in whose name any shares of Common Stock delivered upon conversion is registered shall be deemed to be the holder of record of such shares as of the close of business on the relevant Conversion Date (in the case of Physical Settlement) or the last Trading Day of the relevant Observation Period (in the case of Combination Settlement)called for redemption, as ~~the case may be. Upon a conversion of Notes~~described under Article 15, and such ~~Person shall no longer be a~~ Holder of submits such Notes ~~surrendered~~ for conversion ~~as of the~~ at any time ~~immediately~~ prior to the close of business on the ~~Conversion Date. (j) The Issuer shall not issue any fractional share of Common Stock upon conversion of~~ Business Day immediately preceding the ~~Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion~~ Redemption 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 conversionor, if the ~~Issuer has elected~~ Company fails to pay the Redemption Price on the Redemption Date, such later date on which the Company pays the Redemption Price), then the Company will, in addition to paying cash and delivering shares of Common Stock, if any, pay a Make-Whole Premium in cash to such holder equal to the sum of the present values of the remaining scheduled payments of interest that would have been made on the Notes to be converted had such Notes remained outstanding from the applicable Conversion Date to the Maturity Date (~~or is deemed to have elected) Combination Settlement~~excluding interest accrued to, but excluding, the full number of 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 shares remaining after such computation shall be paid in cash.applicable Conversion

Appears in 1 contract

Sources: Indenture (Pacira Pharmaceuticals, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the ~~Issuer~~ 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, (x) cash up to the aggregate principal amount of the Notes being converted and (~~“Cash Settlement”),~~ y) cash or shares of Common ~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common~~ Stock ~~in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”)~~ or a combination of cash and shares of Common Stock, ~~together with cash~~at the Company’s election, in respect of the remainder, if ~~applicable~~any, of its Conversion Obligation in ~~lieu~~ excess of ~~delivering any fractional share~~ the aggregate principal amount of ~~Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election~~the Notes being converted, as set forth in this Section ~~14.02~~14.02(a)(iii) and 14.02(j). (i) All conversions for which the relevant Conversion Date occurs on or after ~~November 15, 2025~~the date of the Company’s issuance of a Redemption Notice with respect to any Notes and prior to the close of business on the Business Day before the related Redemption Date will be settled using the same forms and amounts of consideration, and all conversions for which the relevant Conversion Date occurs on or after ~~the Issuer’s issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date~~December 15, 2027 shall be settled using the same ~~Settlement Method~~forms and amounts of consideration. (ii) Except for any conversions for which the relevant Conversion Date occurs after the ~~Issuer~~Company’s issuance of a Redemption Notice ~~with respect to the Notes~~ but prior to the close of business on the Business Day before the related Redemption ~~Date~~ Date, and any conversions for which the relevant Conversion Date occurs on or after ~~November~~ December 15, ~~2025~~2027, the ~~Issuer~~ Company shall use the same ~~Settlement Method~~ forms and amounts of consideration for all conversions with the same Conversion Date, but the ~~Issuer~~ Company shall not have any obligation to use the same ~~Settlement Method~~ forms and amounts of consideration with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion Date (or any conversion for which the relevant Conversion Date occurs (A) after the Company’s issuance of a Redemption Notice and prior to the close of business on the Business Day before the related Redemption Date, or (B) on or after December 15, 2027), the ~~Issuer~~ Company elects to settle all or a portion of its Conversion Obligation in excess of the principal amount of the Notes being converted in cash, the Company shall deliver a notice (the “Settlement Notice”) ~~of the relevant Settlement Method in respect of such Conversion Date, the Issuer shall deliver such Settlement Notice in writing~~ to the ~~Holders with a copy to~~ converting Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs (xA) after the ~~date of~~ Company’s issuance of a Redemption Notice ~~with respect to the Notes~~ and prior to the close of business on the Business Day before the related Redemption Date, in such Redemption Notice (and, in the case of a partial redemption, in a notice sent on the relevant Redemption Notice Date to all Holders of Notes not called for redemption) or (yB) on or after ~~November~~ December 15, ~~2025~~2027, no later than ~~November~~ December 15, ~~2025~~2027 (in each case, the “Settlement Method Election Deadline”). Such Settlement Notice shall indicate the percentage of each share of Common Stock issuable upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”). If the ~~Issuer~~ Company does not ~~elect a Settlement Method~~ make such an election prior to the ~~deadline set forth in the immediately preceding sentence~~Settlement Method Election Date, the ~~Issuer~~ Company shall no longer have the right to elect a Cash ~~Settlement or Physical Settlement~~ Percentage with respect to such conversion or during such period and the ~~Issuer~~ Company shall ~~be deemed to have elected Combination Settlement~~ settle its Conversion Obligation by paying cash in respect of the principal portion of the Notes being converted and delivering shares of Common Stock in respect of the remainder, if any, of the Company’s Conversion Obligation in excess of the aggregate principal portion of the Notes being converted. Prior to close of business on the Business Day immediately preceding December 15, 2027 (other than during a period described in clause (A) in the first parenthetical in the immediately preceding paragraph), the Company may, at its election, inform (an “Irrevocable Election Notice”) Holders of Notes in writing that the Company has irrevocably elected to settle its Conversion ~~Obligation, and~~ Obligation in excess of the ~~Specified Dollar Amount per~~ principal portion of all Notes submitted for conversion subsequent to the date of the Irrevocable Election Notice through a Cash Percentage of 0 percent for each $1,000 principal amount of Notes ~~shall be equal~~ and such irrevocable election will apply to ~~$1,000. Such Settlement~~ all conversions of Notes with a Conversion Date that is on or after the date the Company sends such notice; provided, however, that any Irrevocable Election Notice ~~shall specify the relevant Settlement Method and~~ given during a period described in clause (A) in the ~~case~~ first parenthetical in the immediately preceding paragraph will only apply to Notes submitted for conversion subsequent to the applicable Redemption Date. Concurrently with providing the Irrevocable Election Notice to Holders of ~~an election of Combination Settlement~~Notes, the ~~relevant Settlement~~ Company will promptly deliver a copy of the Irrevocable Election Notice ~~shall indicate~~ to the ~~Specified Dollar Amount per $1,000 principal amount~~ Trustee and the Conversion Agent (if other than the Trustee) and post the substance of ~~Notes~~the Irrevocable Election Notice on the Company’s website or disclose the same in a Current Report on Form 8-K (or any successor form) that is filed, or furnished, with the Commission. If For the ~~Issuer delivers a Settlement~~ avoidance of doubt, notwithstanding the foregoing, no Irrevocable Election 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 will affect any Cash Percentage theretofore elected (or deemed to be ~~$1,000~~elected) with respect to any Note pursuant to this Section 14.03(a)(iii). (iv) The ~~cash, shares of Common Stock or combination of~~ cash and shares of Common ~~Stock~~ Stock, if any, in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows~~: (A) if~~ : the Issuer elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Issuer shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date (and cash in lieu of fractional shares as provided herein); (B) if the Issuer elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Issuer 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 40 consecutive Trading Days during the related Observation Period; and (C) if the Issuer elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Issuer 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 40 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts, the Daily Net Settlement Amounts ~~(if applicable)~~ and the Daily Conversion Values ~~(if applicable)~~ shall be determined by the ~~Issuer~~ 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 Stock, the ~~Issuer~~ 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 fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section 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~~ 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 14.02(h) and any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) 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 ~~or by facsimile~~ 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 Obligation to be registered, (2) surrender such Notes, duly endorsed to the ~~Issuer~~ 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 14.02(h~~) and any taxes payable as described in Section 14.02(d) or Section 14.02(e~~). The Trustee (and if different, the Conversion Agent) shall notify the ~~Issuer~~ Company of any conversion pursuant to this 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 ~~Issuer~~ Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with 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. (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 14.03(b) and Section 14.07(a), the ~~Issuer~~ 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 Issuer elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer 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 shares of Common Stock are due to a converting ~~Holders~~Holder, the ~~Issuer~~ 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 Stock to which such Holder shall be ~~entitled~~ entitled, in book-entry format through the Depositary, in satisfaction of the ~~Issuer~~Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the ~~Issuer~~ Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the ~~Issuer~~ 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 ~~Issuer~~ Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common 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 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 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The ~~Issuer~~ 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes~~. The ~~Issuer~~Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of ~~Notes into a combination of cash and shares of Common Stock~~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 ~~shall~~ 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 for 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 ~~Issuer~~ Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made~~Interest Payment Date; (3) if the ~~Issuer~~ Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the second Business Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made~~Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record at the close of business on the Regular Record Date immediately preceding the Maturity Date, or a Fundamental Change Repurchase Date or ~~any~~ Redemption Date referred to above, shall receive the full interest payment due on the ~~Maturity Date or such Redemption~~ corresponding Interest Payment Date, ~~as applicable~~or Maturity Date, in cash regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name ~~any~~ the shares of Common Stock ~~delivered~~ shall be issuable upon conversion ~~is registered~~ shall ~~be deemed to be~~ become the ~~holder~~ stockholder of record ~~of such shares~~ as of the close of business on the ~~relevant Conversion Date (in the case of Physical Settlement) or the~~ last Trading Day of the relevant Observation ~~Period (in the case of 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 as of the time immediately prior to the close of business on the Conversion Date~~conversion. (j) The ~~Issuer~~ Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common 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 ~~Issuer~~ Company has elected (or is deemed to have elected) ~~Combination Settlement~~a Cash Percentage less than 100% or if the Company does not deliver a Settlement Notice prior the Settlement Method Election Date, the full number of 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 shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Sources: Indenture (Model N, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~14.02, Section 14.03(b)~~ 14.02 and Section ~~14.07(a~~14.06(a), upon conversion of any Note, the ~~Issuer~~ 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 Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02. (i) All conversions for which the relevant Conversion ~~Date~~ Dates occurs (x) on or after ~~November~~ September 15, ~~2025, and all conversions for which~~ 2030 shall be settled using the ~~relevant Conversion Date occurs after the Issuer’s issuance of~~ same Settlement Method or (y) during a Redemption ~~Notice with respect to the Notes and prior to the related Redemption Date,~~ Period shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs ~~after the Issuer’s issuance of~~ during a Redemption ~~Notice with respect to the Notes but prior to the related Redemption Date~~ Period and any conversions for which the relevant Conversion Date occurs on or after ~~November~~ September 15, ~~2025~~2030, the ~~Issuer~~ Company shall use the same Settlement Method for all conversions ~~with~~ occurring on the same Conversion Date, but the ~~Issuer~~ 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~~Date (or in the case of any conversions occurring (x) during a Redemption Period or (y) on or after September 15, 2030), the ~~Issuer~~ Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion ~~Date~~Date (or such period, as the case may be), the ~~Issuer~~ Company shall deliver such Settlement Notice ~~in writing~~ to ~~the Holders with a copy to~~ converting Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Scheduled Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions ~~for which the relevant Conversion Date occurs~~ occurring (x) ~~after the date of issuance of~~ during a Redemption ~~Notice with respect to the Notes and prior to the related Redemption Date~~Period, in such Redemption ~~Notice~~ Notice, or (y) on or after ~~November~~ September 15, ~~2025~~2030, no later than ~~November~~ the close of business on Scheduled Trading Day immediately preceding September 15, ~~2025~~2030) (in each case, the “Settlement Method Election Deadline”). If the ~~Issuer~~ Company does not timely elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the ~~Issuer~~ Company shall no longer have the right to elect Cash Settlement or ~~Physical~~ Combination Settlement ~~with respect to~~ for such ~~conversion~~ Conversion Date or during such period and the ~~Issuer~~ 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 ~~Issuer~~ 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, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 15, 2030, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of at least $1,000 for all Conversion Dates occurring subsequent to delivery of such notice. If the Company irrevocably elects Combination Settlement with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above a specific amount, the Company will, after the date of such election, inform Holders converting their Notes, the Trustee and the Conversion Agent (if other than the Trustee) of such Specified Dollar Amount no later than the relevant Settlement Method Election Deadline, or, if the Company does not timely notify Holders, the Trustee and the Conversion Agent (if other than the Trustee), such Specified Dollar Amount will be the specific amount set forth in the Settlement Notice or, if no specific amount was set forth in the Settlement Notice, such Specified Dollar Amount will be $1,000 per $1,000 principal amount of Notes. The irrevocable election will apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such notice; provided, however, that no such election will affect any settlement method theretofore elected (or deemed to be elected) with respect to any Note. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes. However, the Company may nonetheless choose to execute such an amendment at its option. If the Company irrevocably fixes the Settlement Method pursuant to this Section 14.02(a)(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 Stock or combination of cash and shares of Common Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the ~~Issuer~~ 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 Stock equal to the Conversion Rate in effect on the Conversion ~~Date (and cash in lieu of fractional shares as provided herein)~~Date; (B) if the ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the ~~Issuer~~ 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 40 30 consecutive Trading Days during the related Observation Period; and (C) if the ~~Issuer~~ Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the ~~Issuer~~ 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 40 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 ~~Issuer~~ 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 Stock, the ~~Issuer~~ 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 Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to 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 14.02(h) and any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) 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 ~~or by facsimile~~ 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 Obligation to be registered, (2) surrender such Notes, duly endorsed to the ~~Issuer~~ 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 14.02(h~~) and any taxes payable as described in Section 14.02(d) or Section 14.02(e~~). The Trustee (~~and~~ and, if different, the Conversion Agent) shall notify the ~~Issuer~~ Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No ~~Notice of Conversion with respect to any~~ Notes may be surrendered for conversion by a Holder thereof if such ~~Holder~~ H▇▇▇▇▇ has also delivered a Fundamental Change Repurchase Notice to the ~~Issuer~~ Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with 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. (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 ~~14.03(b) and Section 14.07(a~~14.06(a), the ~~Issuer~~ 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 ~~Issuer~~ Company elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer shall deliver the consideration due in respect of the Conversion Obligation on the Maturity Date)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 Stock are due to a converting ~~Holders~~Holder, the ~~Issuer~~ Company shall issue or cause to be issued, and deliver to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common Stock to which such Holder shall be entitled in satisfaction of the ~~Issuer~~Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the ~~Issuer~~ Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the ~~Issuer~~ 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 ~~Issuer~~ Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common 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~~ such tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common 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 ~~14.04~~14.03, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The ~~Issuer~~ 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes~~. The ~~Issuer~~Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but ~~not including~~excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~not including~~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 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 ~~shall~~ will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Issuer has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the date on which the corresponding interest payment is made; (3) if the Issuer 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 date on which~~ succeeding the corresponding ~~interest payment~~ Interest Payment Date; (3) if the Company has specified a Redemption Date that is ~~made~~after a Regular Record Date and on or prior to the second Scheduled Trading Day immediately succeeding the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, any Fundamental Change Repurchase Date or ~~any~~ Redemption ~~Date~~ Date, in each case, as described above, shall receive the full interest payment due on the Maturity Date or ~~such Redemption Date, as applicable,~~ 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 Stock delivered upon conversion is registered shall be ~~deemed to be the holder~~ treated as a stockholder of record ~~of such shares~~ as of the close of business on the relevant Conversion Date (in if the ~~case of~~ Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (in if the ~~case of~~ Company elects 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 as of the time immediately prior to the close of business on the Conversion Date~~conversion. (j) The ~~Issuer~~ Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common 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 Issuer has elected (or is deemed to have elected) Combination Settlement, the full number of 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 shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Sources: Indenture (Pacific Biosciences of California, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~14.02~~13.02, Section ~~14.03(b~~13.03(b) and Section ~~14.07(a~~13.07(a), upon conversion of any Note, the ~~Issuer~~ 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 Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section ~~14.02~~ 13.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section ~~14.02~~ 13.02 (“Combination Settlement”), at its election, as set forth in this Section ~~14.02~~13.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~November 15~~September 1, ~~2025~~2031, and all conversions for which the relevant Conversion Date occurs after the ~~Issuer~~Company’s issuance of a Redemption Notice with respect to the Notes and on or prior to the second Scheduled Trading Day 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 ~~Issuer~~Company’s issuance of a Redemption Notice with respect to the Notes but on or prior to the second Scheduled Trading Day prior to the related Redemption ~~Date~~ Date, and any conversions for which the relevant Conversion Date occurs on or after ~~November 15~~September 1, ~~2025~~2031, the ~~Issuer~~ Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the ~~Issuer~~ Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) IfSubject to clauses (i) and (ii) above, if, in respect of any Conversion Date, the ~~Issuer~~ Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date, the ~~Issuer~~ Company, through the Trustee, shall deliver such Settlement Notice ~~in writing~~ to ~~the~~ converting Holders ~~with a copy to the Trustee and the Conversion Agent (if other than the Trustee)~~ no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of 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 on or prior to the second Scheduled Trading Day prior to the related Redemption Date, in such Redemption Notice or (y) on or after ~~November 15~~September 1, ~~2025,~~ 2031 no later than ~~November 15~~September 1, ~~2025~~2031). If the ~~Issuer~~ Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the ~~Issuer~~ Company shall no longer have the right to elect Cash Settlement or Physical Settlement ~~with respect to such conversion~~ and the ~~Issuer~~ 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 ~~Issuer~~ 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. The Company may, prior to September 1, 2031, at its option, irrevocably fix the Settlement Method or the Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 or elect Combination Settlement 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, for all conversions for which the relevant Conversion Date occurs subsequent to such notice, by notice of such election to all Holders. For the avoidance of doubt, such change or election (as the case may be), if made, will be effective without the need to amend this Indenture or the Notes. However, the Company may nonetheless choose to execute such an amendment at its option. (iv) The cash, shares of Common Stock or combination of cash and shares of Common Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the ~~Issuer~~ 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 Stock equal to the Conversion Rate in effect on the Conversion ~~Date (and cash in lieu of fractional shares as provided herein)~~Date; (B) if the ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the ~~Issuer~~ 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 40 consecutive Trading Days during the related Observation Period; and (C) if the ~~Issuer~~ Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the ~~Issuer~~ 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 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 ~~Issuer~~ 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 Stock, the ~~Issuer~~ 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 Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~14.02(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 14.02(h) and any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights13.02(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 ~~or by facsimile~~ 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 Obligation to be registered, (2) surrender such Notes, duly endorsed to the ~~Issuer~~ 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 ~~14.02(h) and any taxes payable as described in Section 14.02(d) or Section 14.02(e~~13.02(h). The Trustee (and if different, the Conversion Agent) shall notify the ~~Issuer~~ Company of any conversion pursuant to this Article 14 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 Event Repurchase Notice to the ~~Issuer~~ Company in respect of such Notes and has not validly withdrawn such ~~Fundamental Change~~ Repurchase Event Repurchase Notice in accordance with Section ~~15.03~~14.02. A Holder’s exercise of its conversion rights shall be irrevocable. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section ~~14.03(b~~13.03(b), Section 13.04(f) ~~and~~ or Section ~~14.07(a~~13.07(a), the ~~Issuer~~ 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 ~~Issuer~~ Company elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer shall deliver the consideration due in respect of the Conversion Obligation on the Maturity Date)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 Stock are due to converting Holders, the ~~Issuer~~ 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 Stock to which such Holder shall be ~~entitled~~ entitled, in certificate form or in book-entry format, in satisfaction of the ~~Issuer~~Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the ~~Issuer~~ Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the ~~Issuer~~ 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 ~~Issuer~~ Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common 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 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 ~~14.04~~13.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 1413. (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 ~~Issuer~~ 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes~~. The ~~Issuer~~Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common 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 ~~shall~~ will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so ~~converted~~converted (regardless of whether the converting Holder was the Holder of record on the corresponding Regular Record Date); ~~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 ~~Issuer~~ 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 ~~date on which the~~ corresponding ~~interest payment is made~~Interest Payment Date; (3) if the ~~Issuer~~ Company has specified a Repurchase Event Repurchase Date for a Fundamental Change ~~Repurchase Date~~ that is after a Regular Record Date and on or prior to the second Business Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made~~Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity ~~Date or~~ Date, any Redemption Date described in clause (2) above, and any Repurchase Event Repurchase Date described in clause (3) above shall receive the full interest payment due on the Maturity Date or ~~such Redemption Date, as applicable,~~ other applicable Interest Payment Date in cash regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name ~~any~~ the shares of Common Stock ~~delivered~~ shall be issuable upon conversion ~~is registered~~ shall be ~~deemed to be the holder~~ treated as a stockholder of record ~~of such shares~~ as of the close of business on the relevant Conversion Date (in if the ~~case of~~ Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (in if the ~~case of~~ Company elects (or is deemed to elect) 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 as of the time immediately prior to the close of business on the Conversion Date~~conversion. (j) The ~~Issuer~~ Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common 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 ~~Issuer~~ Company has elected ~~(or is deemed to have elected)~~ Combination Settlement, the full number of 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 shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Sources: Indenture (Gannett Co., Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) ~~Subject to this~~ Except as provided in Section ~~14.02, Section 14.03(b~~13.03(b) and Section ~~14.07(a~~13.07(a), upon conversion of any Note, the ~~Issuer~~ 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~~applicable, cash (“Cash Settlement”), shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section ~~14.02~~ 13.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section ~~14.02~~ 13.02 (“Combination Settlement”), at ~~its~~ the Company’s election, as ~~set forth in this Section 14.02~~described below. (i) All conversions ~~for which the relevant~~ with a Conversion Date ~~occurs~~ occurring on or after ~~November 15~~March 1, ~~2025, and all conversions for which the relevant Conversion Date occurs after the Issuer’s issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date~~2023, shall be settled using the same Settlement Method~~. (ii) Except for any~~ . For all conversions ~~for which the relevant~~ with a Conversion Date ~~occurs after the Issuer’s issuance of a Redemption Notice with respect to the Notes but~~ occurring prior to ~~the related Redemption Date and any conversions for which the relevant Conversion Date occurs on or after November 15~~March 1, ~~2025~~2023, the ~~Issuer~~ Company shall use the same Settlement Method for all conversions ~~with~~ occurring on the same Conversion Date, but the ~~Issuer~~ Company shall not have any obligation to use the same Settlement Method with respect to conversions ~~with~~ that occur on different Conversion Dates. . However, notwithstanding anything to the contrary in this clause (~~iii~~i), if the Company calls any Notes for redemption, then (x) Ifthe Company will specify in the related Redemption Notice the Settlement Method that will apply to all conversions of Notes with a Conversion Date that occurs on or after the Redemption Notice Date and before the related Redemption Date; and (y) if the related Redemption Date is on or after March 1, ~~in respect of any~~ 2023, then such Settlement Method must be the same Settlement Method that applies to all conversions with a Conversion ~~Date~~Date that occurs on or after March 1, 2023. If the Company elects a Settlement Method, the ~~Issuer elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date~~Company shall notify converting Holders, ~~the Issuer shall deliver such Settlement Notice in writing to the Holders with a copy to~~ the Trustee and the Conversion Agent (if other than the Trustee), in writing, of the Settlement Method it has selected (the “Settlement Notice”) no later than the close of business on the Trading Day immediately following the ~~relevant~~ related Conversion Date (or, in the case of any conversions ~~for which the relevant~~ with a 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)~~ occurring on or after ~~November 15~~March 1, ~~2025~~2023, no later than ~~November 15~~the open of business on March 1, ~~2025~~2023). If the ~~Issuer~~ Company does not timely elect a Settlement Method ~~prior to~~ as provided in this clause (i), then the ~~deadline set forth in the immediately preceding sentence, the Issuer shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to such conversion and the Issuer~~ Company shall be deemed to have elected the Default Settlement Method. If the Company timely elects Combination Settlement in with respect ~~of its Conversion Obligation~~to a conversion but does not timely elect the applicable Specified Dollar Amount, ~~and~~ then the Specified Dollar Amount ~~per~~ for such conversion will be deemed to be $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 For the ~~Issuer delivers~~ avoidance of doubt, the Company’s failure to timely elect a Settlement ~~Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a~~ Method or specify the applicable 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~~will not constitute a Default. (ivii) The cash, shares of Common Stock or combination of cash and shares of Common Stock in respect of any conversion of each $1,000 principal amount of Notes (the “Settlement Amount”) shall be computed as follows: (A) ~~if the Issuer elects to satisfy its Conversion Obligation in respect of such conversion by~~ If Physical ~~Settlement~~Settlement applies, ~~the Issuer shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted~~ a number of shares of the Company’s Common Stock equal to the Conversion Rate in effect on the Conversion Date (and cash in lieu of any fractional ~~shares as provided herein~~share of Common Stock in accordance with subsection (j) of this Section 13.02); (B) ~~if the Issuer elects to satisfy its Conversion Obligation in respect of such conversion by~~ If Cash ~~Settlement~~Settlement applies, ~~the Issuer 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 40 consecutive VWAP Trading Days ~~during~~ in the ~~related~~ relevant Observation Period; and (C) ~~if the Issuer elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by~~ If Combination ~~Settlement, the Issuer shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted~~Settlement applies, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 40 consecutive VWAP Trading Days ~~during~~ in the ~~related~~ relevant Observation Period. (viii) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the ~~Issuer~~ 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 ~~share of Common Stock~~share, the ~~Issuer~~ 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 Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~14.02(e~~13.02(e), ~~before any Holder of a Note shall be entitled~~ to convert a Note as set forth above, ~~such~~ the Holder thereof 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~~13.02(h) and, if required, pay all transfer and similar taxes, if any ~~taxes payable~~ as ~~described~~ provided in ~~Section 14.02(d~~Sections 13.02(d) or ~~Section 14.02(e)~~ (~~and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights)~~ 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 ~~or by facsimile~~ 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 Obligation to be registered, (2) surrender such Notes, duly endorsed to the ~~Issuer~~ Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer ~~documents~~ documents, (4) if required, pay all transfer or similar taxes and (45) if required, pay funds equal to interest payable on the next Interest Payment Date ~~to which such Holder is not entitled~~ as set forth in Section ~~14.02(h) and any taxes payable as described in Section 14.02(d) or Section 14.02(e~~13.02(h). The Trustee (~~and~~ and, if different, the Conversion Agent) shall notify the ~~Issuer~~ Company of any conversion pursuant to this Article 14 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 ~~Issuer~~ Company in respect of such Notes and ~~has~~ not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~15.03~~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. (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~~ described in ~~Section 14.03(b)~~ Sections 13.03, 13.04, and ~~Section 14.07(a)~~13.07, the ~~Issuer~~ Company shall pay or deliver, as ~~the case may be~~applicable, the consideration due in respect of the Conversion Obligation as follows: (i) if Cash Settlement or Combination Settlement applies, on or before the ~~second Business Day immediately following the relevant Conversion Date~~third (or, if the ~~Issuer elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record~~ T+2 Effective Date immediately preceding the Maturity Date, the Issuer shall deliver the consideration due in respect of the Conversion Obligation on the Maturity Date), or on the second Business Day immediately following has occurred by the last VWAP Trading Day of the Observation Period for such conversion, the second) Business Day immediately after the last VWAP Trading Day of such Observation Period; and (ii) if Physical Settlement applies, in on or before the ~~case of any other Settlement Method~~third (or, if the T+2 Effective Date has occurred by the Conversion Date for such conversion, the second) Business Day immediately after such Conversion Date. If any shares of Common Stock are due to converting Holders, the ~~Issuer~~ Company shall issue or cause to be issued, and deliver to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common Stock to which such Holder shall be entitled in satisfaction of the ~~Issuer~~Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the ~~Issuer~~ Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder ~~but, if required by the Issuer 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 ~~Issuer~~ Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common 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 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 ~~14.04~~13.04, no adjustment shall be made for dividends on any shares ~~of Common Stock~~ issued upon the conversion of any Note as provided in this Article 14XIII. (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 ~~Issuer~~ 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes~~. The ~~Issuer~~Company’s settlement of the ~~full~~ Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but ~~not including~~excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~not including~~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 Stock, such 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 ~~shall~~ will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the ~~Issuer~~ Company has specified a Redemption Date that is after a such Regular Record Date and on or prior to the Business Day immediately following ~~the date on which the corresponding interest payment is made~~such Interest Payment Date; (3) if the ~~Issuer~~ 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 date on which the corresponding interest payment is made~~such Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of ~~record~~ Notes at the close of business on the Regular Record Date immediately preceding the Maturity Date, the Redemption Date or ~~any Redemption~~ the Fundamental Change Repurchase Date ~~shall~~ described in (1), (2) and (3) of this paragraph will receive the full interest payment due (accrued to the next Interest Payment Date) on the ~~Maturity Date or such Redemption~~ next Interest Payment Date~~, as applicable~~, regardless of whether their Notes have been ~~converted~~ converted, redeemed or repurchased following such Regular Record Date. (i) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be ~~deemed to be the holder~~ treated as a stockholder of record ~~of such shares~~ as of the close of business on the relevant Conversion Date (in if the ~~case of~~ Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last VWAP Trading Day of the relevant Observation Period (in if the ~~case of~~ Company elects (or is deemed to have elected) to satisfy the related Conversion Obligation by Combination Settlement), 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 as of the time immediately prior to the close of business on the Conversion Date~~conversion. (j) The ~~Issuer~~ Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of ~~delivering~~ any fractional share of Common 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~~ Conversion Date (in or, if such Conversion Date is not a VWAP Trading Day, the ~~case of Combination Settlement~~immediately preceding VWAP Trading Day). For each Note surrendered for conversion, if the ~~Issuer~~ Company has elected (or is deemed to have elected) Combination Settlement, the full number of 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 shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Sources: Indenture (Pra Group Inc)

Conversion Procedure; Settlement Upon Conversion. (a) ~~Subject to this~~ Except as provided in Section ~~14.02, Section 14.03(b~~13.03(b) and Section ~~14.07(a~~13.07(a), upon conversion of any Note, the ~~Issuer~~ 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,~~ solely cash (“Cash Settlement”), shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section ~~14.02~~ 13.02 (“Combination Settlement”), at ~~its~~ the Company’s election, as ~~set forth in this Section 14.02~~the case may be, as described below. (i) All conversions ~~for which the relevant~~ with a Conversion Date ~~occurs~~ occurring on or after ~~November~~ December 15, ~~2025, and all conversions for which the relevant Conversion Date occurs after the Issuer’s issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date~~2028, shall be settled using the same Settlement Method~~. (ii) Except for any conversions for which the relevant~~ . For Conversion ~~Date occurs after the Issuer’s issuance of a Redemption Notice with respect to the Notes but~~ Dates occurring prior to ~~the related Redemption Date and any conversions for which the relevant Conversion Date occurs on or after November~~ December 15, ~~2025~~2028, the ~~Issuer~~ Company shall use the same Settlement Method for all conversions ~~with~~ having the same Conversion Date, but the ~~Issuer~~ 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 the preceding two sentences, 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 December 15, 2028, 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 December 15, 2028. (~~iii~~ii) IfIf the Company elects a Settlement Method, the Company shall send a notice to converting Holders in writing, directly (and, in ~~respect of any Conversion Date~~such case, the ~~Issuer elects~~ Company will simultaneously send a copy of such notice to ~~deliver~~ the Trustee and the Conversion Agent) or through the Trustee (upon its receipt of a ~~notice~~ written instruction from the Company to send such notification), of the Settlement Method it has selected (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date, the Issuer shall deliver such Settlement Notice in writing to the Holders with a copy to the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the ~~Trading~~ Business Day immediately following the ~~relevant~~ related Conversion Date (oror (x) in the Redemption Notice, if applicable, or (y) in the case of any conversions ~~for which the relevant~~ with a 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)~~ occurring on or after ~~November~~ December 15, ~~2025~~2028, no later than ~~November~~ the close of business on the Business Day immediately preceding December 15, ~~2025~~2028). If the ~~Issuer~~ Company does not so elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the ~~Issuer shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to such conversion and the Issuer shall~~ Company 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 shall 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 Issuer 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. (iii) The Company shall have the right, from time to time prior to December 15, 2028, to change the Default Settlement Method to any Settlement Method that the Company is then permitted to elect, by sending notice to the Holders of the new Default Settlement Method (and, in such case, the Company will simultaneously send a copy of such notice to the Trustee and the Conversion Agent). In addition, the Company may, by notice to the Holders, prior to December 15, 2028, (1) irrevocably fix the Settlement Method; or (2) irrevocably eliminate any one or more (but not all) Settlement Methods (including eliminating Combination Settlement with a particular Specified Dollar Amount or range of Specified Dollar Amounts), provided the Company is then otherwise permitted to elect the applicable Settlement Method(s) so irrevocably elected or the Settlement Method(s) remaining after such irrevocable elimination, as applicable, and provided, further that (w) in no event may the Company elect (whether directly or by eliminating all other Settlement Methods) Combination Settlement with a Specified Dollar Amount that is less than $1,000 per $1,000 principal amount of Notes; (x) the Settlement Method(s) so elected pursuant to clause (1) or (2) above must be a Settlement Method or Settlement Method(s), as applicable, that the Company is then permitted to elect (for the avoidance of doubt, including pursuant to, and subject to, the other provisions of this Section 13.02(a)); (y) upon any such irrevocable election pursuant to clause (1) above, the Default Settlement Method will automatically be deemed to be set to the Settlement Method so fixed; and (z) upon any such irrevocable election pursuant to clause (2) above, the Company will, if needed, simultaneously change the Default Settlement Method to a Settlement Method that is consistent with such irrevocable election. Such notice, if sent, must set forth the applicable Settlement Method and expressly state that the election is irrevocable and applicable to all conversions of Notes with a Conversion Date that occurs on or after the date such notice is sent to Holders. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(h) (it being understood, however, that the Company may nonetheless choose to execute such an amendment at its option). Notwithstanding anything to the contrary in this Indenture or the Notes, no irrevocable election or change in Default Settlement Method, as the case may be, made pursuant to this Section 13.02(a) shall affect any Settlement Method theretofore elected (or deemed to be elected) with respect to any Note pursuant to this Indenture (including pursuant to Section 10.01(h) or this Section 13.02(a)). (iv) If the Company changes the Default Settlement Method or irrevocably fixes the Settlement Method(s), in either case pursuant Section 13.02(a)(iii), then the Company shall, promptly, but in any event within five (5) Business Days, either post the Default Settlement Method or fixed Settlement Method(s), as applicable, on its website or disclose the same in a Current Report on Form 8-K (or any successor form) that is filed with, or furnished to, the SEC. (v) The ~~cash, shares of Common Stock~~ cash or combination of cash and shares of Common ~~Stock~~ Stock, if any, in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) ~~if the Issuer elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement~~If Cash Settlement applies, the ~~Issuer shall deliver~~ Company will pay to ~~the~~ converting ~~Holder~~ Holders in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date (and cash in lieu of fractional shares as provided herein); (B) if the Issuer elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Issuer shall pay to the converting Holder 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 40 consecutive VWAP Trading Days ~~during~~ in the ~~related~~ relevant Observation Period; and (CB) ~~if the Issuer elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by~~ If Combination ~~Settlement~~Settlement applies, the ~~Issuer shall~~ Company 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 40 consecutive VWAP Trading Days ~~during~~ in the ~~related~~ relevant Observation Period. (vvi) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the ~~Issuer~~ 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 ~~share of Common Stock~~share, the ~~Issuer~~ 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 Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~14.02(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 ~~14.02(h~~13.02(h) and, if required, pay all transfer and ~~any taxes payable~~ similar taxes, if any, as ~~described~~ provided in ~~Section 14.02(d~~Sections 13.02(d) or ~~Section 14.02(e)~~ (~~and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights)~~ 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 ~~or by facsimile~~ 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 Obligation to be registered, (2) surrender such Notes, duly endorsed to the ~~Issuer~~ 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 ~~14.02(h) and any taxes payable as described in Section 14.02(d) or Section 14.02(e~~13.02(h). The Trustee (~~and~~ and, if different, the Conversion Agent) shall notify the ~~Issuer~~ Company of any conversion pursuant to this Article 14 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 ~~Issuer~~ Company in respect of such Notes and ~~has~~ not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~15.03~~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. (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 14.03(b)~~ Subject to Sections 13.03 and ~~Section 14.07(a)~~13.07, the ~~Issuer~~ 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 Issuer elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer 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 VWAP Trading Day of the Observation Period~~, in the case of any other Settlement Method~~. If any shares of Common Stock are due to converting Holders, the ~~Issuer~~ Company shall issue or cause to be issued, and deliver to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common Stock to which such Holder shall be entitled in satisfaction of the ~~Issuer~~Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the ~~Issuer~~ Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder ~~but, if required by the Issuer 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 ~~Issuer~~ Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common 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 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 ~~14.04~~13.04, no adjustment shall be made for dividends on any shares ~~of Common Stock~~ issued upon the conversion of any Note as provided in this Article 14XIII. (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 ~~Issuer~~ 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes~~. The ~~Issuer~~Company’s settlement of the ~~full~~ Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but ~~not including~~excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~not including~~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 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 ~~shall receive~~ will 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~~ payable, on ~~the Notes so converted~~such Interest Payment Date, on 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 ~~Issuer~~ Company has specified a ~~Redemption~~ Fundamental Change Repurchase Date that is after a such Regular Record Date and on or prior to the Business Day immediately following ~~the date on which the corresponding interest payment is made~~such Interest Payment Date; (3) if the Issuer 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 date on which the corresponding interest payment is made; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts 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 ~~or any~~ and the Redemption Date ~~shall~~ described in clauses (1), (2) and (4) of this paragraph will receive the full interest payment due on the Maturity Date or ~~such Redemption~~ other applicable Interest Payment Date~~, as applicable~~, 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 Stock delivered upon conversion is registered shall be ~~deemed to be the holder~~ treated as a stockholder of record ~~of such shares~~ as of the close of business on ~~the relevant Conversion Date (in the case of Physical Settlement) or the~~ last VWAP Trading Day of the relevant Observation ~~Period (in the case of Combination Settlement~~Period, subject to Sections 13.04(c) and 13.04(e)~~, as the case may be~~. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for ~~conversion as of the time immediately prior to the close of business on the Conversion Date~~conversion. (j) The ~~Issuer~~ Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of ~~delivering~~ any fractional share of Common Stock issuable upon conversion based on the Daily VWAP ~~for the relevant Conversion Date (in the case of Physical Settlement) or based~~ on the ~~Daily~~ last VWAP ~~for the last~~ Trading Day of the ~~relevant~~ applicable Observation ~~Period (in the case of Combination Settlement)~~Period. For each Note surrendered for conversion, if the ~~Issuer~~ Company has elected (or is deemed to have elected) Combination Settlement, the full number of 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 shares remaining after such computation shall be paid in cash.be

Appears in 1 contract

Sources: Indenture (Encore Capital Group Inc)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the ~~Issuer~~ 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 Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~November 15, 2025~~the date of the Company’s issuance of a Redemption Notice with respect to any Notes and prior to the close of business on the Business Day before the related Redemption Date will be settled using the same Settlement Method, and all conversions for which the relevant Conversion Date occurs on or after ~~the Issuer’s issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date~~March 1, 2025 shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs after the ~~Issuer~~Company’s issuance of a Redemption Notice ~~with respect to the Notes~~ but prior to the close of business on the Business Day before the related Redemption ~~Date~~ Date, and any conversions for which the relevant Conversion Date occurs on or after ~~November 15~~March 1, 2025, the ~~Issuer~~ Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the ~~Issuer~~ Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion Date (or any conversion for which the relevant Conversion Date occurs (i) after the Company’s issuance of a Redemption Notice and prior to the close of business on the Business Day before the related Redemption Date, or (ii) on or after March 1, 2025), the ~~Issuer~~ Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion ~~Date~~Date (or such period, as the case may be), the ~~Issuer~~ Company, through the Trustee, shall deliver such Settlement Notice ~~in writing~~ to ~~the~~ converting Holders ~~with a copy to the Trustee and the Conversion Agent (if other than the Trustee)~~ no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs (xi) after the date of issuance of a Redemption Notice ~~with respect to the Notes~~ and prior to the close of business on the Business Day before the related Redemption Date, in such Redemption Notice (and, in the case of a partial redemption, in a notice sent on the relevant Redemption Notice Date to all Holders of Notes not called for redemption) or (yii) on or after ~~November 15~~March 1, 2025, no later than ~~November 15~~March 1, 2025). If the ~~Issuer~~ Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence with respect to any conversion as described in the preceding sentence, the ~~Issuer shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to such conversion and the Issuer~~ 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 ~~Issuer~~ 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. Notwithstanding anything to the contrary in the foregoing, in certain circumstances described in Section 14.01(b)(ii), the Company shall be permitted to irrevocably elect Physical Settlement in a Certain Distributions Notification and any such election would be applicable to conversions with a Conversion Date that occurs on or after the date of delivery to the Holders of the Certain Distributions Notification until the Certain Distributions Conversion Period End Date. (iv) The cash, shares of Common Stock or combination of cash and shares of Common Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if ~~the Issuer elects to satisfy its Conversion Obligation in respect of such conversion by~~ Physical ~~Settlement~~Settlement applies, the ~~Issuer~~ 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 Stock equal to the Conversion Rate in effect on the Conversion ~~Date (and cash in lieu of fractional shares as provided herein)~~Date; (B) if ~~the Issuer elects to satisfy its Conversion Obligation in respect of such conversion by~~ Cash ~~Settlement~~Settlement applies, the ~~Issuer~~ 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 40 30 consecutive Trading Days during the related Observation Period; and (C) if ~~the Issuer elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by~~ Combination ~~Settlement~~Settlement applies, the ~~Issuer~~ 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 40 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 ~~Issuer~~ 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 Stock, the ~~Issuer~~ 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 Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to 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 14.02(h) and any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) 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 ~~or by facsimile~~ 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 Obligation to be registered, (2) surrender such Notes, duly endorsed to the ~~Issuer~~ 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 14.02(h~~) and any taxes payable as described in Section 14.02(d) or Section 14.02(e~~). The Trustee (and if different, the Conversion Agent) shall notify the ~~Issuer~~ Company of any conversion pursuant to this 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 ~~Issuer~~ Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with 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. (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 14.03(b) and Section 14.07(a), the ~~Issuer~~ 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 Issuer elects~~ Physical Settlement applies (provided ~~that for~~ that, with respect to any ~~Notes converted after the close of business on~~ Conversion Date following the Regular Record Date immediately preceding the Maturity ~~Date~~Date where Physical Settlement applies to the related conversion, the ~~Issuer~~ Company shall ~~deliver~~ settle any such conversion on the Maturity Date (or, if the Maturity Date is not a Business Day, the next Business Day), and, for the purposes of calculating the consideration due ~~in respect of~~ upon such conversion, the Conversion ~~Obligation~~ 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 the case of~~ if any other Settlement ~~Method~~Method applies. If any shares of Common Stock are due to a converting ~~Holders~~Holder, the ~~Issuer~~ 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 Stock to which such Holder shall be ~~entitled~~ entitled, in book-entry format through the Depositary, in satisfaction of the ~~Issuer~~Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the ~~Issuer~~ Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the ~~Issuer~~ 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 ~~Issuer~~ Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common 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 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 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The ~~Issuer~~ 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes~~. The ~~Issuer~~Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common 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 ~~shall~~ will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided 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 ~~Issuer~~ Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made~~Interest Payment Date; (3) if the ~~Issuer~~ Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the second Business Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made~~Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record at the close of business on the Regular Record Date immediately preceding the Maturity Date, or a Fundamental Change Repurchase Date or ~~any~~ Redemption Date referred to above, shall receive the full interest payment due on the ~~Maturity~~ corresponding Interest Payment Date ~~or such Redemption Date, as applicable,~~ in cash regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name ~~any~~ the shares of Common Stock ~~delivered~~ shall be issuable upon conversion ~~is registered~~ shall ~~be deemed to be~~ become the ~~holder~~ stockholder of record ~~of such shares~~ as of the close of business on the relevant Conversion Date (in if the ~~case of~~ Company elects to satisfy the related Conversion Obligation by Physical Settlement) or on the last Trading Day of the relevant Observation Period (in if the ~~case of~~ Company elects 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 as of the time immediately prior to the close of business on the Conversion Date~~conversion. (j) The ~~Issuer~~ Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common 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 ~~Issuer~~ Company has elected (or is deemed to have elected) Combination Settlement, the full number of 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 shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Sources: Indenture (Cerence Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~14.02~~13.02, Section ~~14.03(b~~13.03(b) and Section ~~14.07(a~~13.07(a), upon conversion of any Note, the ~~Issuer~~ 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”)~~up to the aggregate principal amount of the Notes to be converted and pay or deliver, as the case may be, cash, shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section ~~14.02 (“Physical Settlement”)~~ 13.02 or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section ~~14.02~~ 13.02 (such elected method, the “~~Combination Settlement~~Settlement Method”), at ~~its~~ the Company’s election, ~~as set forth~~ in ~~this Section 14.02~~respect of the remainder, if any, of the Company’s conversion obligation in excess of the aggregate principal amount of the Notes being converted. (i) All conversions for which the relevant Conversion Date occurs ~~on or after November 15, 2025, and all conversions for which the relevant Conversion Date occurs~~ after the ~~Issuer~~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 December 15, 2029, shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs after the ~~Issuer~~Company’s issuance of a Redemption Notice with respect to the Notes but prior to the related Redemption ~~Date~~ Date, and any conversions for which the relevant Conversion Date occurs on or after ~~November~~ December 15, ~~2025~~2029, the ~~Issuer~~ Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the ~~Issuer~~ Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. The Company may, at any time prior to December 15, 2029, by written notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee), irrevocably elect one settlement method or irrevocably eliminate one or more Settlement Methods or irrevocably elect a Cash Amount (as defined below). (iii) If, in respect of any Conversion ~~Date~~Date (or the period described in the third immediately succeeding set of parentheses, as the case may be), the ~~Issuer~~ Company elects to settle all or a portion of the Company’s conversion obligation in excess of the principal portion of the notes being converted in cash, it will (A) deliver a written notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion ~~Date~~Date (or such period, as the case may be), the ~~Issuer~~ Company shall deliver such Settlement Notice ~~in writing~~ to the ~~Holders with a copy to the Trustee and~~ Trustee, the Conversion Agent ~~(if other than the Trustee)~~ and converting Holders no later than the close of business on the first VWAP Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions 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~~ before the related Redemption Date, in such Redemption Notice or (y) on or after ~~November~~ December 15, ~~2025~~2029, no later than ~~November~~ December 15, ~~2025~~2029) and (B) specify the maximum amount of the consideration due upon conversion in excess of the principal portion of the Notes being converted to be satisfied in cash (excluding cash in lieu of issuing any fractional share) as a fixed dollar amount (the “Cash Amount” and, the percentage of the amount of the consideration due upon conversion in excess of the principal portion of the Notes being converted that is accounted for by the Cash Amount, the “Cash Percentage”). If With respect to any conversion, if the ~~Issuer~~ Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, then the ~~Issuer shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to such conversion and the Issuer~~ Company shall be deemed to have elected ~~Combination Settlement~~ to pay cash up to the aggregate principal amount of the Notes to be converted and deliver shares of Common Stock, 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 , in respect of ~~its Conversion Obligation, and~~ the ~~Specified Dollar Amount per $1,000~~ remainder of the conversion obligation in excess of the aggregate principal amount of the Notes to be converted. Notwithstanding anything to the contrary herein, if the Company calls any Notes for redemption pursuant to Article 16 and the related Redemption Date is on or after December 15, 2029, then the Settlement Method that shall apply to all conversions with a Conversion Date that occurs on or after the date the Company sends the related Redemption Notice and on or before the Scheduled Trading Day immediately preceding such Redemption Date shall be ~~equal to $1,000. Such Settlement~~ set forth in such Redemption Notice and shall ~~specify~~ be the ~~relevant~~ same Settlement Method ~~and in the case of an election of Combination Settlement~~that applies to all conversions with a Conversion Date that occurs on or after December 15, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Issuer 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 $1,0002029. (iv) The cash, shares of Common Stock or combination of cash and shares of Common Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Issuer elects to satisfy its Conversion Obligation in respect of such conversion by Physical SettlementUpon conversion, the Issuer shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date (and cash in lieu of fractional shares as provided herein); (B) if the Issuer elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Issuer 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 40 consecutive Trading Days during the related Observation Period; and (C) if the Issuer elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Issuer shall Company will pay or deliver, as the case may be, to the converting Holder in respect of each ~~$1,000 principal~~ Note converted a settlement amount ~~of Notes being converted, a~~ (the “Settlement ~~Amount~~ Amount”) equal to the sum of the Daily Settlement Amounts for each of the 40 consecutive VWAP Trading Days during the ~~related Observation Period~~relevant Conversion Reference Period for such Note, 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. If more than one note is surrendered for conversion at any one time by the same holder, the conversion obligation with respect to such notes shall be computed on the basis of the aggregate principal amount of the notes (or specified portions thereof to the extent permitted thereby) so surrendered. (v) The Daily Settlement Amounts, the Daily Net Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the ~~Issuer~~ Company promptly following the last day of the ~~Observation~~ Conversion Reference 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 Stock, the ~~Issuer~~ Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) in writing 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 fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section 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 any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) 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 or by facsimile 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 Obligation to be registered, (2) surrender such Notes, duly endorsed to the Issuer 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 14.02(h) and any taxes payable as described in Section 14.02(d) or Section 14.02(e). The Trustee (and if different, the Conversion Agent) shall notify the Issuer of any conversion pursuant to this 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 Issuer in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with 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. (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 14.03(b) and Section 14.07(a), the Issuer 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 Issuer elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer 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 shares of Common Stock are due to converting Holders, the Issuer shall issue or cause to be issued, and deliver to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common Stock to which such Holder shall be entitled in satisfaction of the Issuer’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Issuer 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 Issuer 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 Issuer shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common 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 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 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Issuer 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes. The Issuer’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common 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 shall receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Issuer has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the date on which the corresponding interest payment is made; (3) if the Issuer 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 date on which the corresponding interest payment is made; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date or any Redemption Date shall receive the full interest payment due on the Maturity Date or such Redemption Date, as applicable, regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name any shares of Common Stock delivered upon conversion is registered shall be deemed to be the holder of record of such shares as of the close of business on the relevant Conversion Date (in the case of Physical Settlement) or the last Trading Day of the relevant Observation Period (in the case of 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 as of the time immediately prior to the close of business on the Conversion Date. (j) The Issuer shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common 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 Issuer has elected (or is deemed to have elected) Combination Settlement, the full number of 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 shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Sources: Indenture (Xerox Corp)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the ~~Issuer shall~~ Company 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 Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with ~~subsection (j~~Section 14.02(i) ~~of this Section 14.02~~ (“Physical Settlement”) ), or a combination of cash and shares of the Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with ~~subsection (j~~Section 14.02(i) ~~of this Section 14.02~~ (“Combination Settlement”)~~, at its election~~, as set forth in this Section 14.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~November~~ March 15, ~~2025,~~ 2023 and all conversions ~~for which the relevant Conversion Date occurs~~ occurring after the ~~Issuer’s issuance~~ date the Company issues a Notice of ~~a Redemption Notice with respect to the Notes~~ 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 after the Issuer’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 ~~November~~ March 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 ~~Issuer~~ 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 ~~Issuer~~ 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 March 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~~If the Company elects a Settlement Method, the ~~Issuer elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date, the Issuer~~ Company shall deliver ~~such Settlement Notice in writing~~ notice to ~~the~~ Holders ~~with a copy to the Trustee and~~ through the Conversion Agent ~~(if other than~~ of such Settlement Method the ~~Trustee)~~ Company has selected no later than the close of business on the 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 March 15, 2023, no later than March 15, 2023 or (xB) in the case of any conversions occurring after the date of issuance of a Notice of Tax Redemption ~~Notice with respect to the Notes~~ and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Tax Redemption Date, in such ~~Redemption~~ Notice ~~or (y) on or after November 15, 2025, no later than November 15, 2025~~of Tax Redemption). If the ~~Issuer~~ Company does not timely elect a Settlement ~~Method prior to the deadline set forth in the immediately preceding sentence~~Method, the ~~Issuer~~ Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to ~~such conversion~~ that Conversion Date and the ~~Issuer~~ 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 Issuer 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. (iviii) The cash, shares of Common Stock or combination of cash and shares of Common 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 ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the ~~Issuer~~ 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 Stock equal to the Conversion Rate ~~in effect~~ on the Conversion Date (~~and~~ plus cash in lieu of any fractional ~~shares as provided herein~~share of Common Stock issuable upon conversion); (B) if the ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the ~~Issuer~~ 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 40 consecutive VWAP Trading Days during the related Observation Period; and (C) if the ~~Issuer~~ Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the ~~Issuer~~ 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 40 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 ~~Issuer~~ 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 Stock, the ~~Issuer~~ 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 Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (bi) ~~Subject to Section 14.02(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 14.02(h) and any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) 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 or by facsimile~~ 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 shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Issuer 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 ~~14.02(h) and any taxes payable as described in Section 14.02(d) or Section 14.02(e~~14.02(g). The Trustee (and if different, the Conversion Agent) shall notify the ~~Issuer~~ 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. ~~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 Issuer 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 (or, in the case of a Global Note, has complied with the Applicable Procedures with respect to such a withdrawal) in accordance with the terms of Section 15.03. If ~~more than one Note shall be surrendered for conversion~~ a Holder has already delivered a Fundamental Change Repurchase Notice, such Holder’s right to withdraw such notice and convert the Notes that are subject to repurchase will terminate at ~~one time by~~ the ~~same Holder, the Conversion Obligation with respect to such Notes shall be computed~~ close of business on the ~~basis of~~ Business Day immediately preceding the ~~aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered~~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 14.03(b) and Section 14.07(a), the ~~Issuer~~ 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 ~~Issuer~~ Company elects Physical ~~Settlement~~ Settlement; or (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer shall deliver the consideration due in respect of the Conversion Obligation on the Maturity Date), or on 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 Stock are due to converting Holders, the ~~Issuer~~ Company shall issue or cause to be issued, and deliver ~~to the Conversion Agent or~~ to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the ~~Depositary~~ Depositary, as the case may be, for the full number of shares of Common Stock to which such Holder shall be entitled in satisfaction of the ~~Issuer~~Company’s Conversion Obligation. (d) In case any Certificated Note shall be surrendered for partial conversion, in an Authorized Denomination, the ~~Issuer~~ Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder ~~of the Note~~ so surrendered a new Note or Notes in ~~authorized denominations~~ 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 ~~Issuer~~ 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 ~~Issuer~~ Company shall pay any documentary, stamp or similar issue or transfer tax due on the ~~issue~~ issuance of any shares of Common Stock upon ~~conversion~~conversion of such Note, 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 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 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14. (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 ~~Issuer~~ 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes~~. The ~~Issuer~~Company’s ~~settlement~~ payment or delivery, as the case may be, of the ~~full Conversion Obligation~~ Settlement Amount upon conversion of any Note shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than ~~cancelled~~canceled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common 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 shall receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so ~~converted~~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 ~~Issuer~~ Company has ~~specified~~ 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 ~~date on which the~~ corresponding ~~interest payment is made;~~ Interest Payment Date; (3iii) if the ~~Issuer~~ 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 ~~date on which the~~ corresponding ~~interest payment is made~~Interest Payment Date; or or (4iv) to the extent of any ~~Defaulted Amounts~~overdue interest, if any ~~Defaulted Amounts~~ overdue interest exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, any Fundamental Change Repurchase Date or and any Tax Redemption ~~Date~~ as described in clauses (ii) and (iii) above shall receive and retain the full interest payment due on the Maturity Date or ~~such Redemption Date, as applicable,~~ other applicable Interest Payment Date regardless of whether their Notes have been converted following such Regular Record Date. (ih) The Person in whose name any shares of Common Stock delivered upon conversion is registered shall ~~be deemed to be~~ become the holder of record of such shares as of the close of business on (i) the relevant Conversion Date if the Company elects Physical Settlement or (~~in the case of Physical Settlement~~ii) or the last VWAP Trading Day of the relevant Observation Period ~~(in~~ if the ~~case of~~ Company elects or is deemed to 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 time immediately prior to~~ the close of business on such Regular Record Date shall have the ~~Conversion~~ right to receive the interest payable on such Interest Payment Date, in accordance with Section 14.02(g). (ji) The ~~Issuer~~ Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of ~~delivering~~ any fractional share of Common 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 ~~Issuer~~ Company has elected (or is deemed to ~~have elected~~elect) Combination Settlement, the full number of 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 ~~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 14.02, Section~~ Except as provided in ‎Section 14.03(b) and ~~Section~~ ‎Section 14.07(a), upon conversion of any Note, on the ~~Issuer~~ second Business Day immediately following the last Trading Day of the relevant Observation Period, 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 (~~a “~~Cash Settlement”), shares~~ Settlement Amount” equal to the sum of ~~Common Stock~~the Daily Settlement Amounts for each of the 40 Trading Days during the relevant Observation Period for such Note, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j‎(j) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section ‎Section 14.02. (i) All conversions for which the relevant Conversion Date occurs ~~on or after November 15, 2025, and all conversions for which the relevant Conversion Date occurs~~ after the ~~Issuer~~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 August 15, 2026, shall be settled using the same ~~Settlement Method. (ii)~~ forms and amounts of consideration. Except for any conversions for which the relevant Conversion Date occurs after the ~~Issuer~~Company’s issuance of a Redemption Notice with respect to the Notes but prior to the related Redemption ~~Date~~ Date, and any conversions for which the relevant Conversion Date occurs on or after ~~November~~ August 15, ~~2025~~2026, the ~~Issuer~~ Company shall use the same ~~Settlement Method~~ forms and amounts of consideration for all conversions with the same Conversion Date, but the ~~Issuer~~ 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~~Date (or one of the periods described in the third immediately succeeding set of parentheses, as the case may be), the ~~Issuer~~ Company elects to ~~deliver~~ settle all or a ~~notice~~ portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cash in respect of such Conversion Date (or such period, as the case may be), the Company shall inform converting Holders of such election (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date, the Issuer shall deliver such Settlement Notice in writing to the Holders with a copy to the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Trading Day immediately following the ~~relevant~~ related 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~~ Notice, or (y) on or after ~~November~~ August 15, ~~2025~~2026, no later than ~~November~~ August 15, ~~2025~~2026) and the Company shall indicate in such Settlement Notice the percentage of the consideration due upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”). If the ~~Issuer~~ Company does not elect a ~~Settlement Method~~ Cash Percentage prior to the deadline set forth in the immediately preceding sentence, the ~~Issuer~~ Company shall no longer have the right to elect a Cash ~~Settlement or Physical Settlement with respect to such conversion~~ Percentage and the ~~Issuer~~ 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 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 Issuer 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. (iv) The cash, shares of Common Stock or combination of cash and delivering shares of Common Stock in respect of the remainder (other than cash in lieu of any ~~conversion~~ fractional share), if any, of ~~Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Issuer elects to satisfy~~ its Conversion Obligation in ~~respect~~ excess of ~~such conversion by Physical Settlement,~~ the ~~Issuer shall deliver to~~ aggregate principal portion of the ~~converting Holder in respect of each $1,000 principal amount of~~ Notes being converted ~~a number of shares of Common Stock equal~~ as set forth herein. The Company shall separately provide to the ~~Conversion Rate in effect on~~ Trustee and the Conversion ~~Date~~ Agent (~~and cash~~ if other than the Trustee) in ~~lieu of fractional shares as provided herein~~writing any notice contemplated by this clause (i);. (Bii) if the Issuer elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Issuer 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 40 consecutive Trading Days during the related Observation Period; and (C) if the Issuer elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Issuer 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 The Daily Settlement Amounts ~~for each of~~ (if applicable), the ~~40 consecutive Trading Days during the related Observation Period. (v) The~~ Daily Net Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the ~~Issuer~~ 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 Stock, the ~~Issuer~~ Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) in writing 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 fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to ~~Section~~ ‎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~~ any Special Interest payable on the next Special Interest Payment Date to which such Holder is not entitled as set forth in ~~Section~~ ‎Section 14.02(h) and any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) 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 at the office of the Conversion Agent ~~or by facsimile~~ (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 Obligation to be registered, (2) surrender such Notes, duly endorsed to the ~~Issuer~~ Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the Corporate Trust Office or at the office of the Conversion ~~Agent~~Agent (if other than the Trustee), (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~~ ‎Section 14.02(h~~) and any taxes payable as described in Section 14.02(d) or Section 14.02(e~~). The Trustee (and if different, the Conversion Agent) shall notify the ~~Issuer~~ Company of any conversion pursuant to this ~~Article~~ ‎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 ~~Issuer~~ Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with ~~Section~~ ‎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. (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 14.03(b) and Section 14.07(a), the Issuer 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 Issuer elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer 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 shares of Common Stock are due to a converting ~~Holders~~Holder, the ~~Issuer~~ 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, ~~certificates or a book-entry transfer through the Depositary for~~ the full number of shares of Common Stock to which such Holder shall be ~~entitled~~ entitled, in book-entry format through the Depositary, in satisfaction of the ~~Issuer~~Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial ~~conversion~~conversion in $1,000 aggregate principal amount or an integral multiple of $1,000 in excess thereof, the ~~Issuer~~ Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the ~~Issuer~~ 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 ~~Issuer~~ Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common 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 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~~ ‎Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The ~~Issuer~~ 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes~~. The ~~Issuer~~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 not including, the relevant Conversion Date. As a result, accrued and unpaid ~~interest~~Special Interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of ~~Notes into a combination of cash and shares of Common Stock~~Notes, 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 ~~shall~~ will receive the full amount of ~~interest~~ any Special Interest payable on such Notes on the corresponding Special Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any ~~Regular~~ Special Interest Record Date to the open of business on the immediately following Special Interest Payment Date must be accompanied by funds equal to the amount of ~~interest~~ any Special Interest payable on the Notes so ~~converted~~converted on the corresponding Special Interest Payment Date (regardless of whether the converting Holder was the Holder of record on such Special Interest Record Date); provided that no such payment shall be required (1) for conversions following ~~the Regular Record Date immediately preceding~~ November 1, 2026, if Special Interest is payable on the Maturity Date; (2) if the ~~Issuer~~ Company has specified a Redemption Date that is after a ~~Regular~~ Special Interest Record Date and on or prior to the Business Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made~~Special Interest Payment Date; (3) if the ~~Issuer~~ Company has specified a Fundamental Change Repurchase Date that is after a ~~Regular~~ Special Interest Record Date and on or prior to the Business Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made~~Special Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on November 1, 2026 (if and to the ~~Regular Record Date immediately preceding~~ extent Special Interest is payable on the Maturity ~~Date or~~ Date) and any Redemption Date or Fundamental Change Repurchase Date described in clause (2) and (3) of the immediately preceding sentence shall receive the full ~~interest~~ Special Interest payment due on the Maturity Date or ~~such Redemption Date, as applicable,~~ other applicable Interest Payment Date in cash regardless of whether their Notes have been converted following ~~such Regular~~ the applicable Special Interest Record Date. (i) The Person in whose name ~~any~~ the shares of Common Stock ~~delivered~~ shall be issuable upon conversion ~~is registered~~ shall be ~~deemed to be the holder~~ treated as a stockholder of record ~~of such shares~~ as of the close of business on the ~~relevant Conversion Date (in the case of Physical Settlement) or the~~ last Trading Day of the ~~relevant~~ related Observation ~~Period (in the case of 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 as of the time immediately prior to the close of business on the Conversion Date~~conversion. (j) The ~~Issuer~~ Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common 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 Issuer has elected (or is deemed to have elected) Combination Settlement~~, the full number of 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 shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Sources: Indenture (Affirm Holdings, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the ~~Issuer~~ 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 Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~November 15, 2025~~the date of the Company’s issuance of a Redemption Notice with respect to any Notes and prior to the close of business on the Business Day before the related Redemption Date will be settled using the same Settlement Method, and all conversions for which the relevant Conversion Date occurs on or after ~~the Issuer’s issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date~~March 1, 2025 shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs after the ~~Issuer~~Company’s issuance of a Redemption Notice ~~with respect to the Notes~~ but prior to the close of business on the Business Day before the related Redemption ~~Date~~ Date, and any conversions for which the relevant Conversion Date occurs on or after ~~November 15~~March 1, 2025, the ~~Issuer~~ Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the ~~Issuer~~ Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion Date (or any conversion for which the relevant Conversion Date occurs (i) after the Company’s issuance of a Redemption Notice and prior to the close of business on the Business Day before the related Redemption Date, or (ii) on or after March 1, 2025), the ~~Issuer~~ Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion ~~Date~~Date (or such period, as the case may be), the ~~Issuer~~ Company shall deliver such Settlement Notice ~~in writing~~ to ~~the Holders with a copy to~~ converting Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs (xi) after the date of issuance of a Redemption Notice ~~with respect to the Notes~~ and prior to the close of business on the Business Day before the related Redemption Date, in such Redemption Notice (and, in the case of a partial redemption, in a notice sent on the relevant Redemption Notice Date to all Holders of Notes not called for redemption) or (yii) on or after ~~November 15~~March 1, 2025, no later than ~~November 15~~March 1, 2025). If the ~~Issuer~~ Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence with respect to any conversion as described in the preceding sentence, the ~~Issuer shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to such conversion and the Issuer~~ 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 ~~Issuer~~ 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. Notwithstanding anything to the contrary in the foregoing, in certain circumstances described in Section 14.01(b)(ii), the Company shall be permitted to irrevocably elect Physical Settlement in a Certain Distributions Notification and any such election would be applicable to conversions with a Conversion Date that occurs on or after the date of delivery to the Holders of the Certain Distributions Notification until the Certain Distributions Conversion Period End Date. (iv) The cash, shares of Common Stock or combination of cash and shares of Common Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if ~~the Issuer elects to satisfy its Conversion Obligation in respect of such conversion by~~ Physical ~~Settlement~~Settlement applies, the ~~Issuer~~ 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 Stock equal to the Conversion Rate in effect on the Conversion ~~Date (and cash in lieu of fractional shares as provided herein)~~Date; (B) if ~~the Issuer elects to satisfy its Conversion Obligation in respect of such conversion by~~ Cash ~~Settlement~~Settlement applies, the ~~Issuer~~ 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 40 consecutive Trading Days during the related Observation Period; and (C) if ~~the Issuer elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by~~ Combination ~~Settlement~~Settlement applies, the ~~Issuer~~ 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 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 ~~Issuer~~ 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 Stock, the ~~Issuer~~ 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 Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the ~~procedures~~ Applicable Procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) 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 ~~or by facsimile~~ 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 Obligation to be registered, (2) surrender such Notes, duly endorsed to the ~~Issuer~~ 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 14.02(h~~) and any taxes payable as described in Section 14.02(d) or Section 14.02(e~~). The Trustee (and if different, the Conversion Agent) shall notify the ~~Issuer~~ Company of any conversion pursuant to this 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 ~~Issuer~~ Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with 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. (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 14.03(b) and Section 14.07(a), the ~~Issuer~~ 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 Issuer elects~~ Physical Settlement applies (provided ~~that for~~ that, with respect to any ~~Notes converted after the close of business on~~ Conversion Date following the Regular Record Date immediately preceding the Maturity ~~Date~~Date where Physical Settlement applies to the related conversion, the ~~Issuer~~ Company shall ~~deliver~~ settle any such conversion on the Maturity Date (or, if the Maturity Date is not a Business Day, the next Business Day), and, for the purposes of calculating the consideration due ~~in respect of~~ upon such conversion, the Conversion ~~Obligation~~ 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 the case of~~ if any other Settlement ~~Method~~Method applies. If any shares of Common Stock are due to a converting ~~Holders~~Holder, the ~~Issuer~~ 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 Stock to which such Holder shall be ~~entitled~~ entitled, in book-entry format through the Depositary, in satisfaction of the ~~Issuer~~Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the ~~Issuer~~ Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the ~~Issuer~~ 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 ~~Issuer~~ Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common 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 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 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The ~~Issuer~~ 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes~~. The ~~Issuer~~Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common 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 ~~shall~~ 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 for 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 ~~Issuer~~ Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made~~Interest Payment Date; (3) if the ~~Issuer~~ Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the second Business Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made~~Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record at the close of business on the Regular Record Date immediately preceding the Maturity Date, or a Fundamental Change Repurchase Date or ~~any~~ Redemption Date referred to above, shall receive the full interest payment due on the ~~Maturity~~ corresponding Interest Payment Date ~~or such Redemption Date, as applicable,~~ in cash regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name ~~any~~ the shares of Common Stock ~~delivered~~ shall be issuable upon conversion ~~is registered~~ shall ~~be deemed to be~~ become the ~~holder~~ stockholder of record ~~of such shares~~ as of the close of business on the relevant Conversion Date (in if the ~~case of~~ Company elects to satisfy the related Conversion Obligation by Physical Settlement) or on the last Trading Day of the relevant Observation Period (in if the ~~case of~~ Company elects 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 as of the time immediately prior to the close of business on the Conversion Date~~conversion. (j) The ~~Issuer~~ Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common 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 ~~Issuer~~ Company has elected (or is deemed to have elected) Combination Settlement, the full number of 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 shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Sources: Indenture (Model N, Inc.)

Appears in 1 contract

Sources: Indenture (Lantheus Holdings, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the ~~Issuer~~ 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”), ~~shares of Common Stock,~~ ADSs together with cash, if applicable, in lieu of delivering any fractional ~~share of Common Stock~~ ADSs (“Fractional ADSs”) (in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”)) or a combination of cash and ~~shares of Common Stock~~ADSs, together with cash, if applicable, in lieu of delivering any ~~fractional share of Common Stock~~ Fractional ADS in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02. (i) All conversions for which the relevant Conversion Date occurs ~~on or after November 15, 2025, and all conversions for which the relevant Conversion Date occurs~~ after the ~~Issuer~~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 prior to the related Redemption Date, ~~shall~~ as applicable, and all conversions for which the relevant Conversion Date occurs on or after the 30th Scheduled Trading Day immediately preceding the Maturity Date will be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs after the ~~Issuer~~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 prior to the related Redemption ~~Date~~ Date, as applicable, and any conversions for which the relevant Conversion Date occurs on or after ~~November 15, 2025~~the 30th Scheduled Trading Day immediately preceding the Maturity Date, the ~~Issuer~~ Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the ~~Issuer~~ Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs 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 prior to the related Redemption Date, as applicable, in such Redemption Notice or on or after the ~~Issuer~~ 30th Scheduled Trading Day immediately preceding the Maturity Date, no later than the 31st Schedule Trading Day immediately preceding the Maturity Date, 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~~Date (or such period, as the ~~Issuer shall deliver such Settlement Notice in writing~~ case may be) to ~~the Holders with a copy to~~ converting 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 prior to the related Redemption Date, as applicable, in such Redemption Notice or ~~(y)~~ on or after ~~November 15, 2025~~the 30th Scheduled Trading Day immediately preceding the Maturity Date, no later than ~~November 15~~the 31st Scheduled Trading Day immediately preceding the Maturity Date) (in each case, ~~2025~~the “Settlement Method Election Deadline”). If the ~~Issuer~~ Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the ~~Issuer~~ Company shall no longer have the right to elect Cash Settlement or Physical Settlement ~~with respect to such conversion~~ and the ~~Issuer~~ Company shall be deemed to have elected ~~Combination~~ Physical Settlement in respect of its Conversion ~~Obligation~~Obligation (such settlement method, ~~and~~ the ~~Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000~~“Default Settlement Method” initially elected by the Company). 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 ~~Issuer~~ Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $US$1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $US$1,000 principal amount of Notes shall be deemed to be $US$1,000. (iv) The Company may, by written notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee), prior to the 30th Scheduled Trading Day immediately preceding the Maturity Date, change the Default Settlement Method or elect to irrevocably fix the Settlement Method to any Settlement Method that the Company is then permitted to elect, including Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 or with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above any specific amount set forth in such election notice, that will apply to all Note conversions with a Conversion Date that is on or after the date the Company sends such notice. If the Company changes the Default Settlement Method or 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, the Trustee and the Conversion Agent (if other than the Trustee) in writing of such Specified Dollar Amount in respect of the relevant conversion or conversions no later than the relevant Settlement Method Election Deadline for such conversion or conversions, or, if the Company does not timely inform the Holders, the Trustee and the Conversion Agent of the Specified Dollar Amount, such Specified Dollar Amount shall be the specific amount set forth in the change or election notice or, if no specific amount was set forth in the change or election notice, such Specified Dollar Amount shall be deemed to be $1,000 per $1,000 principal amount of Notes. If the Company changes the Default Settlement Method or irrevocably fixes the Settlement Method, then the Company shall concurrently either post the Default Settlement Method or fixed Settlement Method, as applicable, on the Company’s website or disclose the same in a current report on Form 6-K (or any successor form) that is filed with the Commission. Notwithstanding the foregoing, no such change in the Default Settlement Method or irrevocable election will affect any Settlement Method theretofore elected (or deemed to be elected) with respect to any Conversion Date pursuant to this Section 14.02. For the avoidance of doubt, such change or election (as the case may be), if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.02(a). However, the Company may nonetheless choose to execute such an amendment at the Company’s option. (v) Subject to Section 14.03 and Section 14.04, the cash, ~~shares of Common Stock~~ ADSs or a combination of cash and ~~shares of Common Stock~~ ADSs, as applicable, in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the ~~Issuer~~ Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the ~~Issuer~~ Company shall deliver to the converting Holder in respect of each $US$1,000 principal amount of Notes being converted a number of ~~shares of Common Stock~~ ADSs equal to the Conversion Rate in effect on the Conversion Date ~~(and cash in lieu of fractional shares as provided herein)~~for such conversion; (B) if the ~~Issuer~~ Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the ~~Issuer~~ 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 40 20 consecutive Trading Days during the related Observation Period; and (C) if the ~~Issuer~~ Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the ~~Issuer~~ 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 40 20 consecutive Trading Days during the related Observation Period. (vvi) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the ~~Issuer~~ 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 Stock~~Fractional ADS, the ~~Issuer~~ 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 Stock~~Fractional ADSs. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (vii) The Company covenants that it has reserved and will keep available at all times a number of Ordinary Shares corresponding to the maximum number of ADSs deliverable upon conversion of the Notes, plus any additional ADSs deliverable pursuant to Section 14.03, assuming Physical Settlement applies to each conversion (such ADSs, “Make-Whole ADS”). The Company also covenants that it will obtain approval to list (i) the maximum number of ADSs deliverable upon conversion of the Notes (assuming Physical Settlement applies to each conversion and excluding any Make-Whole ADSs) on the New York Stock Exchange, (ii) the Ordinary Shares represented by such maximum number of ADSs on the Hong Kong Stock Exchange and (iii) the same number of Ordinary Shares on the Singapore Exchange (in each case, where applicable, subject to official notice of issuance upon conversion of the notes). Prior to the scheduled delivery of any Make- Whole ADSs upon conversion of the Notes, the Company will obtain approval to list (i) such Make-Whole ADSs on the New York Stock Exchange, (ii) the Ordinary Shares represented by such Make-whole ADSs on the Hong Kong Stock Exchange and (iii) the Ordinary Shares represented by such Make-whole ADSs on the Singapore Exchange (in each case, where applicable, subject to official notice of issuance upon conversion of the notes). (b) Subject to 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, (1) subject to the immediately succeeding Clause (3), comply with the procedures of the Depositary in effect at that time ~~and~~for converting a beneficial interest in a Global Note, and the procedures agreed between the Company and the ADS Depositary with respect to any ADSs issued upon conversion of the Notes prior to the Resale Restriction Termination Date, (2) if required, pay funds equal to ~~interest~~ interest, if any, payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) ), and (ii3) in prior to the ~~case of a Physical Note (1)~~ Resale Restriction Termination Date, complete, manually sign and deliver an a duly completed irrevocable notice to the Conversion ~~Agent~~ Agent, the Company and the ADS Depositary as set forth in the Form of Notice of Conversion (or a facsimile thereof) (a “Notice of Conversion”) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver a duly completed irrevocable Notice of Conversion to the Conversion Agent at the specified office of the Conversion ~~Agent or by facsimile~~ Agent, the Company and the ADS Depositary, 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~~ ADSs to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the ~~Issuer~~ Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the specified office of the ~~Conversion Agent~~Trustee, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to ~~interest~~ interest, if any, payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h~~) and any taxes payable as described in Section 14.02(d) or Section 14.02(e~~). The Trustee (and if different, the Conversion Agent) shall notify the ~~Issuer~~ Company of any conversion pursuant to this Article 14 on the Conversion ~~Date~~ Date, or promptly following instructions for such conversion. No Notice of Conversion with respect to any Notes may be delivered and no Notes may be surrendered by a Holder for conversion thereof if such Holder has also delivered a Repurchase Notice or Fundamental Change Repurchase Notice to the ~~Issuer~~ Company in respect of such Notes and has not validly withdrawn such Repurchase Notice or Fundamental Change Repurchase ~~Notice~~ Notice, as the case may be, in accordance with Section 15.03. The delivery of the ADSs or any cash in lieu of Fractional ADSs by the ADS Depositary to Holders upon conversion of their Notes or their designated transferees will be governed by the terms of the Unrestricted Deposit Agreement or the Restricted Deposit Agreement, as applicable, the Procedures Letter and by other procedures agreed between the Company and the ADS Depositary with respect to any ADSs issued upon conversion of the Notes. By converting a beneficial interest in a Global Note into ADSs, the Holder is deemed to represent to the Company and to the ADS Depositary that such Holder is not an “affiliate” (as defined in Rule 144) of the Company and has not been an “affiliate” of the Company during the three months immediately preceding the Conversion Date. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the ~~Issuer~~ Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the third Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the third Business Day immediately following the last Trading Day of the relevant Observation Period, in the case of any other Settlement Method; provided that in respect of (x) all conversions for which the relevant Conversion Date occurs after the issuance of a Redemption Notice by the Company with respect to the Notes and prior to the close of business on the second Scheduled Trading Day prior to the related Redemption Date (as the case may be), (y) all conversions for which the relevant Conversion Date occurs on or after the 30th Scheduled Trading Days immediately preceding the Maturity Date, if the Company elect Combination Settlement or Cash Settlement, 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 last Trading Day of the relevant Observation Period and (z) all conversions for which the relevant Conversion ~~Date, if the Issuer elects Physical Settlement (provided that for any Notes converted~~ Date occurs on or after the ~~close of business on the Regular Record~~ Interest Payment Date immediately preceding the Maturity Date, if the ~~Issuer~~ Company elects Physical Settlement, the Company shall ~~deliver~~ pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the Maturity Date, provided further that, solely for the purposes of this Section 14.02(c), or the term “Business Day” shall also include days on ~~the second Business Day immediately following the last Trading Day of the Observation Period,~~ which banking institutions in the ~~case of any other Settlement Method~~Cayman Islands are authorized or obligated by law or executive order to close. If any ~~shares of Common Stock~~ ADSs are due to a converting ~~Holders~~Holder, subject to the Unrestricted Deposit Agreement, the Issuer shall issue or cause to be issued, and deliver to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common Stock to which such Holder shall be entitled in satisfaction of the Issuer’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Issuer shall execute Restricted Deposit Agreement 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 Issuer 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 Issuer shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common 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 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 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Issuer 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes. The Issuer’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common 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 shall receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Issuer has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the date on which the corresponding interest payment is made; (3) if the Issuer 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 date on which the corresponding interest payment is made; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date or any Redemption Date shall receive the full interest payment due on the Maturity Date or such Redemption DateProcedures Letter, as applicable, regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name any shares of Common Stock delivered upon conversion is registered shall be deemed to be if the ~~holder of record of such shares as of the close of business on the relevant~~ Conversion Date (in the case of Physical Settlement) or the last Trading Day of the relevant Observation Period (in the case of 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 as of the time immediately occurs prior to the close of business on the Conversion Date. (j) The Issuer shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common 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 Issuer has elected (or is deemed to have elected) Combination Settlement, the full number of 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 shares remaining after such computation shall be paid in cash.Restr

Appears in 1 contract

Sources: Indenture (NIO Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~14.02~~13.02, Section ~~14.03(b~~13.03(a) and Section ~~14.07(a~~13.07(a), upon conversion of any Note, the ~~Issuer~~ 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 Stock, together with cash, if applicable, in lieu of delivering any fractional share of Class A Common Stock in accordance with subsection (j) of this Section ~~14.02~~ 13.02 (“Physical Settlement”) or a combination of cash and shares of Class A Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Class A Common Stock in accordance with subsection (j) of this Section ~~14.02~~ 13.02 (“Combination Settlement”), at its election, as set forth in this Section ~~14.02~~13.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~November 15, 2025, and all conversions for which~~ the ~~relevant Conversion~~ 35th Scheduled Trading Date ~~occurs after the Issuer’s issuance of a Redemption Notice with respect to the Notes and~~ immediately prior to the ~~related Redemption~~ Maturity Date (the “Irrevocable Settlement Election Date, ”) shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs on or after the ~~Issuer’s issuance of a Redemption Notice~~ Irrevocable Settlement Election Date, and except as set forth below 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 November 15, 2025~~Redemptions, the ~~Issuer~~ Company shall use the same Settlement Method for all conversions with the same Conversion Date, ~~but~~ but, the ~~Issuer~~ 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~~Date (or the period described in the third immediately succeeding set of parentheses, as the case may be), the ~~Issuer~~ Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion ~~Date~~Date (or such period, as the case may be), the ~~Issuer~~ Company shall deliver such Settlement Notice ~~in writing~~ to ~~the Holders with a copy to the Trustee and~~ the Conversion Agent ~~(if other than the Trustee)~~ and converting Holders no later than the close of business on the first Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions 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 ~~November 15, 2025~~the Irrevocable Settlement Election Date, no later than ~~November 15, 2025~~Irrevocable Settlement Election Date). If the ~~Issuer~~ Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the ~~Issuer~~ Company shall no longer have the right to elect Cash Settlement or Physical Settlement ~~with respect to such conversion~~ and the ~~Issuer~~ 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 ~~Issuer~~ 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. Notwithstanding anything to the contrary in the foregoing, (i) if the Company calls any Notes for Redemption, then the Company will specify in the related Redemption Notice (and, in the case of a Redemption of less than all Notes then outstanding, in a notice sent simultaneously to all Holders of Notes not called for Redemption and to the Trustee) 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 Scheduled Trading Day immediately preceding the related Redemption Date; and (ii) unless the Company has elected another Settlement Method to apply for Conversion Dates that occur on or after a date the Company delivers a Distribution Conversion Trigger Notification until the related Distribution Conversion Period End Date in accordance with the provisions described above, the Company will be permitted to elect Physical Settlement in any such Distribution Conversion Trigger Notification as in Section 13.02(b) and any such election would be applicable to conversions with Conversion Dates that occur after delivery to the Holders of such Distribution Conversion Trigger Notification until the related Distribution Conversion Period End Date. (iv) The cash, shares of Class A Common Stock or combination of cash and shares of Class A Common Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the ~~Issuer~~ 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 Stock equal to the Conversion Rate in effect on the Conversion Date (~~and~~ plus cash in lieu of any fractional ~~shares as provided herein~~share of Class A Common Stock issuable upon conversion); (B) if the ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the ~~Issuer~~ 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 40 30 consecutive VWAP Trading Days during the related Observation Period; and (C) if the ~~Issuer~~ Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the ~~Issuer~~ 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 40 30 consecutive VWAP Trading Days during the related Observation ~~Period~~Period (plus cash in lieu of any fractional share of Class A Common Stock issuable upon conversion). (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the ~~Issuer~~ 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 Stock, the ~~Issuer~~ 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 Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~14.02(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~~ 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 ~~14.02(h~~13.02(h) ~~and any taxes payable as described in~~ and, if required, pay all transfer or similar taxes, if any, pursuant to Section ~~14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights~~13.02(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 ~~or by facsimile~~ 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 Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the ~~Issuer~~ 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~~13.02(h) and ~~any taxes payable as described in~~ (5) if required, pay all transfer or similar taxes, if any, pursuant to Section ~~14.02(d) or Section 14.02(e~~13.02(e). The Trustee (and if different, the Conversion Agent) shall notify the ~~Issuer~~ Company of any conversion pursuant to this Article 14 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 ~~Issuer~~ Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~15.03~~14.02. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section ~~14.03(b~~13.03(a) and Section ~~14.07(a~~13.07(a), the ~~Issuer~~ 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 ~~Issuer~~ Company elects to satisfy its Conversion Obligation through Physical Settlement (~~provided that for~~ provided, that, with respect to any ~~Notes converted~~ conversion with a Conversion Date occurring after the ~~close of business on the Regular~~ regular Record Date immediately preceding the Maturity ~~Date~~Date to which Physical Settlement applies, the ~~Issuer shall deliver the consideration due in respect of the Conversion Obligation~~ Company will settle any such conversion on the Maturity Date), or on the second Business Day immediately following the last VWAP 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 Class A Common Stock are due to a converting ~~Holders~~Holder, the ~~Issuer~~ 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 Stock to which such Holder shall be ~~entitled~~ entitled, in book-entry format through the Depositary, in satisfaction of the ~~Issuer~~Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the ~~Issuer~~ Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the ~~Issuer~~ 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 ~~Issuer~~ Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue or delivery of any shares of Class A Common 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 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 ~~14.04~~13.04, no adjustment shall be made for dividends on any shares of Class A Common Stock issued upon the conversion of any Note as provided in this Article 1413. (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 ~~Issuer~~ 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes~~. The ~~Issuer~~Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but ~~not including~~excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~not including~~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 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 shall receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Issuer has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the date on which the corresponding interest payment is made; (3) if the Issuer 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 date on which the corresponding interest payment is made; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date or any Redemption Date shall receive the full interest payment due on the Maturity Date or such Redemption Date, as applicable, regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name any shares of Common Stock delivered upon conversion is registered shall be deemed to be the holder of record of such shares as of the close of business on the relevant Conversion Date (in the case of Physical Settlement) or the last Trading Day of the relevant Observation Period (in the case of 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 as of the time immediately prior to the close of business on the Conversion Date. (j) The Issuer shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common 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 Issuer has elected (or is deemed to have elected) Combination Settlement, the full number of 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 shares remaining after such computation shall be paid in cash.or

Appears in 1 contract

Sources: Indenture (Twilio Inc)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, on the ~~Issuer~~ 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”), shares~~ Settlement Amount” equal to the sum of ~~Common Stock~~the Daily Settlement Amounts for each of the 30 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 Stock in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~November 15~~December 1, ~~2025,~~ 2028 and all conversions for which the relevant Conversion Date occurs ~~after the Issuer’s issuance of~~ during a Redemption ~~Notice with respect to the Notes and prior to the related Redemption Date,~~ Period shall be settled using the same ~~Settlement Method~~forms and proportions of consideration. (ii) Except for any conversions for which the relevant Conversion Date occurs on or after ~~the Issuer’s issuance of a Redemption Notice with respect to the Notes but prior to the related Redemption Date~~ December 1, 2028 and any conversions for which the relevant Conversion Date occurs ~~on or after November 15, 2025~~during a Redemption Period, the ~~Issuer~~ Company shall use the same ~~Settlement Method~~ forms and proportions of consideration for all conversions with the same Conversion Date, but the ~~Issuer~~ Company shall not have any obligation to use the same ~~Settlement Method~~ forms and proportions of consideration with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion ~~Date~~Date (or any conversions for which the relevant Conversion Date occurs during a Redemption Period or any conversions for which the relevant Conversion Date occurs on or after December 1, 2028), the ~~Issuer~~ 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~~Date (or such period, as the ~~Issuer shall deliver such Settlement Notice in writing~~ case may be) to ~~the Holders with a copy to~~ converting Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of (x) any conversions for which the relevant Conversion Date occurs ~~(x) after the date of issuance of~~ during a Redemption ~~Notice with respect to the Notes and prior to~~ Period, in the related Notice of Redemption ~~Date, in such Redemption Notice~~ or (y) any conversions of Notes for which the relevant Conversion Date occurs on or after ~~November 15~~December 1, ~~2025~~2028, no later than ~~November 15~~December 1, ~~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 ~~Issuer~~ Company does not ~~elect~~ timely make 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 ~~Issuer~~ Company shall no longer have the right to elect a Cash ~~Settlement or Physical Settlement~~ Percentage with respect to any conversion on such ~~conversion~~ Conversion Date or during such period, and the ~~Issuer~~ Company shall be deemed to have elected ~~Combination Settlement in~~ a Cash Percentage of 0% 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 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 Issuer 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~~conversion. (iv) The ~~cash, shares of Common Stock or combination of cash and shares of Common Stock in respect of any conversion of Notes (the “~~Daily Settlement ~~Amount”) shall be computed as follows: (A) if the Issuer elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement~~Amounts, the Issuer shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date (and cash in lieu of fractional shares as provided herein); (B) if the Issuer elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Issuer 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 40 consecutive Trading Days during the related Observation Period; and (C) if the Issuer elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Issuer 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 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 ~~Issuer~~ Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement ~~Amounts or~~ Amounts, Daily Net Settlement Amounts, the Daily Conversion Values~~, as the case may be~~, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the ~~Issuer~~ Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement ~~Amounts or~~ Amounts, the Dail Net Settlement Amounts, the Daily Conversion Values~~, as the case may be~~, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section 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 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 14.02(h) ~~and any taxes payable as described in Section 14.02(d)~~ and, if required, pay all transfer or similar taxes, if any, pursuant to Section 14.02(e) (and ~~therefore~~ the exercise of such ~~Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its~~ conversion ~~rights~~rights shall be irrevocable) 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 ~~or by facsimile~~ 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 Obligation to be registered, (2) surrender such Notes, duly endorsed to the ~~Issuer~~ 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 ~~any taxes payable as described in Section 14.02(d~~(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 ~~Issuer~~ Company of any conversion pursuant to this 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 Issuer in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with 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. (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 14.03(b) and Section 14.07(a), the Issuer 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 Issuer elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer 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 shares of Common Stock are due to converting Holders, the Issuer shall issue or cause to be issued, and deliver to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common Stock to which such Holder shall be entitled in satisfaction of the Issuer’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Issuer 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 Issuer 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 Issuer shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common 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 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 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Issuer 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes. The Issuer’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common 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 shall receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Issuer has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the date on which the corresponding interest payment is made; (3) if the Issuer 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 date on which the corresponding interest payment is made; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date or any Redemption Date shall receive the full interest payment due on the Maturity Date or such Redemption Date, as applicable, regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name any shares of Common Stock delivered upon conversion is registered shall be deemed to be the holder of record of such shares as of the close of business on the relevant Conversion Date (in the case of Physical Settlement) or the last Trading Day of the relevant Observation Period (in the case of 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 as of the time immediately prior to the close of business on the Conversion Date. (j) The Issuer shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common 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 Issuer has elected (or is deemed to have elected) Combination Settlement, the full number of 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 shares remaining after such computation shall be paid in cash.such

Appears in 1 contract

Sources: Indenture (Lyft, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) ~~Subject to this Section 14.02, Section~~ Except as provided in ‎Section 14.03(b) and ~~Section~~ ‎Section 14.07(a), upon conversion of any Note, on the ~~Issuer~~ second Business Day immediately following the last Trading Day of the relevant Observation Period, 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~~ an amount equal to the sum of ~~Common Stock~~the Daily Settlement Amounts for each of the 20 Trading Days during the relevant Observation Period for such Note, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j‎(k) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.0214.03. (i) All conversions for which the relevant Conversion Date occurs ~~on or after November 15, 2025, and all conversions for which the relevant Conversion Date occurs~~ after the ~~Issuer~~Company’s issuance of a Notice of 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, 2028 shall be settled using the same ~~Settlement Method. (ii)~~ forms and amounts of consideration. Except for any conversions for which the relevant Conversion Date occurs after the ~~Issuer~~Company’s issuance of a Notice of 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 ~~November 15~~September 1, ~~2025~~2028, the ~~Issuer~~ Company shall use the same ~~Settlement Method~~ forms and amounts of consideration for all conversions with the same Conversion Date, but the ~~Issuer~~ 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~~Date (or one of the periods described in the third immediately succeeding set of parentheses, as the case may be), the ~~Issuer~~ Company elects to ~~deliver~~ settle all or a ~~notice~~ portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cash in respect of such Conversion Date (or such period, as the case may be), the Company shall inform converting Holders, the Trustee and the Conversion Agent of such election (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date, the Issuer shall deliver such Settlement Notice in writing to the Holders with a copy to the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Trading Day immediately following the ~~relevant~~ related 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 ~~Notice~~ with respect to the Notes and prior to the related Redemption Date, in such Notice of Redemption ~~Notice~~ or (y) on or after ~~November 15~~September 1, ~~2025~~2028, no later than ~~November 15~~September 1, ~~2025~~2028) and the Company shall indicate in such Settlement Notice the percentage of each share issuable upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”). If the ~~Issuer~~ Company does not elect a ~~Settlement Method~~ Cash Percentage prior to the deadline set forth in the immediately preceding sentence, the ~~Issuer~~ Company shall no longer have the right to elect a Cash ~~Settlement or Physical Settlement with respect to such conversion~~ Percentage and the ~~Issuer~~ 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 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 Issuer 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. (iv) The cash, shares of Common Stock or combination of cash and delivering shares of Common Stock in respect of ~~any conversion~~ the remainder, if any, of ~~Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Issuer elects to satisfy~~ its Conversion Obligation in ~~respect~~ excess of ~~such conversion by Physical Settlement,~~ the ~~Issuer shall deliver to~~ aggregate principal portion of the ~~converting Holder in respect of each $1,000 principal amount of~~ Notes being converted ~~a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date (and cash in lieu of fractional shares~~ as ~~provided~~ set forth herein);. (Bii) if the Issuer elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Issuer 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 40 consecutive Trading Days during the related Observation Period; and (C) if the Issuer elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Issuer 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 The Daily Settlement Amounts ~~for each of~~ (if applicable), the ~~40 consecutive Trading Days during the related Observation Period. (v) The~~ Daily Net Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the ~~Issuer~~ 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 Stock, the ~~Issuer~~ 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 the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to ~~Section~~ ‎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~~ ‎Section 14.02(h) and any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) 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 ~~or by facsimile~~ 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 Obligation to be registered, (2) surrender such Notes, duly endorsed to the ~~Issuer~~ 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~~ ‎Section 14.02(h~~) and any taxes payable as described in Section 14.02(d) or Section 14.02(e~~). The Trustee (and if different, the Conversion Agent) shall notify the ~~Issuer~~ Company of any conversion pursuant to this ~~Article~~ ‎Article 14 on the Conversion Date for such conversion. No ~~Notice of Conversion with respect to any~~ Notes may be surrendered for conversion by a Holder thereof if such ~~Holder~~ H▇▇▇▇▇ has also delivered a Fundamental Change Repurchase Notice to the ~~Issuer~~ Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with ~~Section~~ ‎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. (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 14.03(b) and Section 14.07(a), the Issuer 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 Issuer elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer 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 shares of Common Stock are due to a converting ~~Holders~~Holder, the ~~Issuer~~ 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 Stock to which such Holder shall be ~~entitled~~ entitled, in book-entry format through the Depositary, in satisfaction of the ~~Issuer~~Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the ~~Issuer~~ Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the ~~Issuer~~ 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 ~~Issuer~~ Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common 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 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~~ ‎Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this ~~Article~~ ‎Article 14. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The ~~Issuer~~ 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes~~. The ~~Issuer~~Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of ~~Notes into a combination of cash and shares of Common Stock~~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, Holders of such Notes as of the close of business on such Regular Record Date ~~shall~~ will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the ~~Issuer~~ Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the ~~Business~~ Scheduled Trading Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made~~Interest Payment Date; (3) if the ~~Issuer~~ 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 ~~date on which the~~ corresponding ~~interest payment is made~~Interest Payment Date; or (4) to the extent of any ~~Defaulted Amounts~~overdue interest, if any ~~Defaulted Amounts~~ overdue interest exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date ~~or any Redemption Date~~ shall receive the full interest payment due on the Maturity Date ~~or such Redemption Date, as applicable,~~ in cash regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name any shares of Common Stock ~~delivered~~ shall be issuable upon conversion ~~is registered~~ shall be ~~deemed to be the holder~~ treated as a stockholder of record ~~of such shares~~ as of the close of business on the ~~relevant Conversion Date (in the case of Physical Settlement) or the~~ last Trading Day of the relevant Observation ~~Period (in the case of 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 as of the time immediately prior to the close of business on the Conversion Date~~conversion. (j) The ~~Issuer~~ Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common 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 Issuer has elected (or is deemed to have elected) Combination Settlement,~~ the full number of ~~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 shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Sources: Indenture (Uber Technologies, Inc)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~14.02~~13.02, Section ~~14.03(b~~13.03(b) and Section ~~14.07(a~~13.07(a), upon conversion of any Note, the ~~Issuer~~ 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 Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section ~~14.02~~ 13.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section ~~14.02~~ 13.02 (“Combination Settlement”), at its election, as set forth in this Section ~~14.02~~13.02. (i) All conversions for which the relevant Conversion Date occurs ~~on or after November 15, 2025, and all conversions for which the relevant Conversion Date occurs~~ after the ~~Issuer~~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 the 45th Scheduled Trading Day immediately preceding the Maturity Date, shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs after the ~~Issuer~~Company’s issuance of a Redemption Notice with respect to the Notes but prior to the related Redemption ~~Date~~ Date, and any conversions for which the relevant Conversion Date occurs on or after ~~November 15, 2025~~the 45th Scheduled Trading Day immediately preceding the Maturity Date, the ~~Issuer~~ Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the ~~Issuer~~ Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. The Company may, at any time prior to the 45th Scheduled Trading Day immediately preceding the Maturity Date, by written notice to Holders, the Trustee and the Conversion Agent, irrevocably elect one settlement method or irrevocably eliminate one or more Settlement Methods or irrevocably elect a Specified Dollar Amount to be applicable to Combination Settlements. (iii) If, in respect of any Conversion ~~Date~~Date (or the period described in the third immediately succeeding set of parentheses, as the case may be), the ~~Issuer~~ Company elects to deliver a written notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion ~~Date~~Date (or such period, as the case may be), the ~~Issuer~~ Company shall ~~deliver~~ send such Settlement Notice ~~in writing~~ to the ~~Holders with a copy to the Trustee and~~ Trustee, the Conversion Agent ~~(if other than the Trustee)~~ and converting Holders no later than the close of business on the first VWAP Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions 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~~ before the related Redemption Date, in such Redemption Notice or (y) on or after ~~November 15, 2025~~the 45th Scheduled Trading Day immediately preceding the Maturity Date, no later than ~~November 15, 2025~~the 45th Scheduled Trading Day immediately preceding the Maturity Date). If With respect to any conversion, if the ~~Issuer~~ Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, then the ~~Issuer~~ Company shall no longer have the right to elect Cash Settlement or Physical Settlement ~~with respect to such conversion~~ and ~~the Issuer~~ shall be deemed to have elected Combination Settlement in with respect ~~of its Conversion Obligation,~~ to such conversion and the Specified Dollar Amount per $1,000 principal amount of Notes ~~shall~~ will 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 ~~Issuer~~ 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. Notwithstanding anything to the contrary herein, if the Company calls any Notes for redemption pursuant to Article 15 and the related Redemption Date is on or after the 45th Scheduled Trading Day immediately preceding the Maturity Date, then the Settlement Method that shall apply to all conversions with a Conversion Date that occurs on or after the date the Company sends the related Redemption Notice and on or before the Scheduled Trading Day immediately preceding such Redemption Date shall be set forth in such Redemption Notice and shall be the same Settlement Method that applies to all conversions with a Conversion Date that occurs on or after the 45th Scheduled Trading Day immediately preceding the Maturity Date. (iv) The cash, shares of Common Stock or combination of cash and shares of Common Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the ~~Issuer~~ Company elects ~~to satisfy its Conversion Obligation in respect of such conversion by~~ Physical Settlement, the ~~Issuer~~ 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 Stock equal to the Conversion Rate in effect on the Conversion Date (~~and~~ provided that the Company shall deliver cash in lieu of fractional shares as ~~provided herein~~described in Section 13.02(j)); (B) if the ~~Issuer~~ Company elects ~~to satisfy its Conversion Obligation in respect of such conversion by~~ Cash Settlement, the ~~Issuer~~ 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 40 consecutive VWAP Trading Days during the related ~~Observation~~ Conversion Reference Period; and (C) if the ~~Issuer~~ Company elects (or is deemed to have elected) ~~to satisfy its Conversion Obligation in respect of such conversion by~~ Combination Settlement, the ~~Issuer~~ 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 40 consecutive VWAP Trading Days during the related ~~Observation~~ Conversion Reference Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the ~~Issuer~~ 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 Stock, the ~~Issuer~~ 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 Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~14.02(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 14.02(h) and any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) 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 ~~or by facsimile~~ 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 Obligation to be registered, (2) surrender such Notes, duly endorsed to the ~~Issuer~~ 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 ~~14.02(h~~13.02(h) and ~~any taxes payable as described~~ (ii) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time and comply with Section ~~14.02(d~~13.02(b)(3), (4) ~~or Section 14.02(e~~and (5). The Trustee (and if different, the Conversion Agent) shall notify the ~~Issuer~~ Company of any conversion pursuant to this Article 14 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 ~~Issuer~~ Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~15.03~~14.02. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in ~~Section 14.03(b~~‎Section 13.03(b) and Section ~~14.07(a~~13.07(a), the ~~Issuer~~ 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 ~~Issuer~~ Company elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer shall deliver the consideration due in respect of the Conversion Obligation on the Maturity Date)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 Stock are due to converting Holders, the ~~Issuer~~ Company shall issue or cause to be issued, and deliver to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, ~~certificates or~~ a book-entry transfer of such shares of Common Stock through the Depositary for the full number of shares of Common Stock to which such Holder shall be entitled in satisfaction of the ~~Issuer~~Company’s Conversion Obligation. (d) In case any Physical Note shall be surrendered for partial conversion, the ~~Issuer~~ Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Physical Holder of the Note so surrendered a new Physical Note or Physical Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Physical Note, without payment of any service charge by the converting Holder but, if required by the ~~Issuer~~ Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Physical Notes issued upon such conversion being different from the name of the Holder of the old Physical Notes surrendered for such conversion. (e) If a Holder submits ~~a Note~~ any of its Notes for conversion, the ~~Issuer~~ Company shall pay any documentary, stamp or similar issue or transfer tax due on the ~~issue of any~~ shares of Common Stock issued upon such 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 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 ~~14.04~~13.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 1413. (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 ~~Issuer~~ 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes~~. The ~~Issuer~~Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common 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~~Date but prior to the opening of business on the Interest Payment Date to which that Regular Record Date relates, Holders of such Notes as of the close of business on ~~such~~ the Regular Record Date ~~shall receive~~ will receive, on the corresponding Interest Payment Date (or, at the Company’s election, sooner), the full amount of interest payable on such Notes on ~~the corresponding~~ such Interest Payment Date notwithstanding the conversion. Notes ~~surrendered for conversion during the period from the close of business on any~~ that are converted with a Conversion Date occurring after a Regular Record Date bur prior to the ~~open of business on the immediately following~~ next Interest Payment ~~Date~~ Date, upon surrender for conversion, must be accompanied by funds equal to the amount of interest payable on the Notes so ~~converted~~converted on the next succeeding 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 ~~Issuer~~ Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made~~Interest Payment Date; (3) if the ~~Issuer~~ 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 ~~date on which the~~ corresponding ~~interest payment is made~~Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts ~~exists~~ exist at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date or any Redemption Date shall receive the full interest payment due on the Maturity Date or such Redemption Date, as applicable, regardless of whether their Notes have been converted following such Regular Record DateNotes. (i) The Person in whose name ~~any~~ the shares of Common Stock ~~delivered~~ shall be issuable upon conversion ~~is registered~~ shall ~~be deemed to be~~ become the ~~holder~~ stockholder of record of with respect to such shares of Common Stock as of the close of business on the relevant Conversion Date (in if the ~~case of~~ Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last VWAP Trading Day of the relevant ~~Observation~~ Conversion Reference Period (in if the ~~case of~~ Company elects 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 as of the time immediately prior to the close of business on the Conversion Date~~conversion. (j) The ~~Issuer~~ Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common 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 ~~Issuer~~ Company has elected ~~(or is deemed to have elected)~~ Combination Settlement, the full number of 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 shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Sources: Indenture (Burlington Stores, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the ~~Issuer~~ 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 Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~November~~ March 15, ~~2025, and all conversions for which the relevant Conversion Date occurs after the Issuer’s issuance of~~ 2030 or during a Redemption ~~Notice with respect to the Notes and prior to the related Redemption Date,~~ Period shall be settled using the same Settlement Method~~. (ii)~~ . Except for ~~any conversions for which the relevant Conversion Date occurs after the Issuer’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 ~~November~~ March 15, ~~2025~~2030 or during a Redemption Period, the ~~Issuer~~ Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the ~~Issuer~~ 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~~Date (or applicable period, as the case may be), the ~~Issuer~~ Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion ~~Date~~Date (or such period, as the case may be), the ~~Issuer~~ Company shall deliver such Settlement Notice ~~in writing~~ to ~~the Holders with a copy to~~ converting Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Trading Day immediately following the ~~relevant~~ related Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs (x) ~~after the date of issuance of~~ during a Redemption ~~Notice with respect to the Notes and prior to the related Redemption Date~~Period, in such Redemption Notice or (y) on or after ~~November~~ March 15, ~~2025~~2030, no later than ~~November~~ March 15, ~~2025). If~~ 2030) (in each case, the ~~Issuer does not elect a~~ “Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Issuer shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to such conversion and the Issuer 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 ~~Issuer~~ Company does not elect a Settlement Method prior to the relevant Settlement Method Election Deadline with respect to a conversion, the Company shall be deemed to have elected the Default Settlement Method with respect to such conversion. If the Company delivers a Settlement Notice prior to the relevant Settlement Method Election Deadline with respect to a conversion electing Combination Settlement (or is deemed to have elected Combination Settlement) in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes to be converted in such Settlement Notice, and does not deliver an updated Settlement Notice with such Specified Dollar Amount listed then on or prior to the Settlement Method Election Deadline, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. (ivii) The Company may, from time to time, prior to March 15, 2030, change the Default Settlement Method by sending notice of the new Default Settlement Method to the Holders, the Trustee and the Conversion Agent (if other than the Trustee). In addition, the Company may, by notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) prior to March 15, 2030, at its option, elect to irrevocably fix the Settlement Method to any Settlement Method that the Company is then permitted to elect, including Combination Settlement with (x) a Specified Dollar Amount of $1,000 per $1,000 principal amount of Notes or (y) with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above any specific amount set forth in such election notice. Concurrently with providing notice to all Holders of an election to change the Default Settlement Method or irrevocably fix the Settlement Method, the Company shall promptly either post an announcement on its website or issue a report on Form 8-K (or any successor form) disclosing such Default Settlement Method or irrevocably fixed Settlement Method. If the Company changes the Default Settlement Method or elects to irrevocably fix the Settlement Method, in either case, to Combination Settlement with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above a specified amount, the Company will, after the date of such change or election, as the case may be, inform Holders converting their Notes, the Trustee, and the Conversion Agent (if other than the Trustee) in writing of such Specified Dollar Amount no later than the relevant Settlement Method Election Deadline, or, if the Company does not timely notify Holders, such Specified Dollar Amount will be the specific amount set forth in the change or election notice or, if no specific amount was set forth in the change or election notice, such Specified Dollar Amount will be $1,000 per $1,000 principal amount of Notes. Such change in the Default Settlement Method or irrevocable election shall apply for all conversions of Notes with Conversion Dates occurring subsequent to delivery of such notice; provided, however, that no such change in the Default Settlement Method or irrevocable election will affect any Settlement Method theretofore elected (or deemed to be elected) with respect to any Note. For the avoidance of doubt, such an irrevocable election, if made, shall be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(1). However, the Company may nonetheless choose to execute such an amendment at its option. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such election of a Settlement Method. (iii) The cash, shares of Common Stock or combination of cash and shares of Common Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (Ai) if the ~~Issuer~~ Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the ~~Issuer~~ 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 Stock equal to the Conversion Rate in effect on the Conversion ~~Date (and cash in lieu of fractional shares as provided herein)~~Date; (Bii) if the ~~Issuer~~ Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the ~~Issuer~~ 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 40 consecutive Trading Days during the related Observation Period; and (Ciii) if the ~~Issuer~~ Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the ~~Issuer~~ 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 40 consecutive Trading Days during the related Observation Period. (viv) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the ~~Issuer~~ Company promptly following the last day of the Observation Period. Promptly and in any event within one Business Day following the last day of the Observation Period after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the ~~Issuer~~ 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 Stock, subject to Applicable Procedures. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to 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 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 14.02(h) ~~and any taxes payable as described in Section 14.02(d)~~ and, if required, pay all transfer or similar taxes, if any, pursuant to Section 14.02(e) (and ~~therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) and (ii)~~ in the case of a Physical Note or a Global Note not approved for processing through the Depositary, (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a ~~facsimile thereof)~~ PDF or other electronic transmission thereof (a “Notice of Conversion”) at the office of the Conversion Agent ~~or by facsimile~~ 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 Obligation to be registered, (2) surrender such Notes, duly endorsed to the ~~Issuer~~ 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 ~~any taxes payable as described in Section 14.02(d~~(5) if required, pay all transfer or similar taxes, if any, pursuant to Section 14.02(e). The Trustee (and if different, the Conversion Agent) shall promptly notify the ~~Issuer~~ Company of any conversion pursuant to this Article ~~14 on the Conversion Date for such conversion~~14. 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 ~~Issuer~~ Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with 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. (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 14.03(b) and Section 14.07(a), the ~~Issuer~~ 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 ~~Issuer~~ Company elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer shall deliver the consideration due in respect of the Conversion Obligation on the Maturity Date)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 Stock are due to a converting ~~Holders~~Holder, the ~~Issuer~~ Company shall issue or cause to be issued, and deliver ~~to the Conversion Agent or~~ to such Holder, or such Holder’s nominee or nominees, ~~certificates or a book-entry transfer through the Depositary for~~ the full number of shares of Common Stock to which such Holder shall be ~~entitled~~ entitled, in book-entry format through the Depositary, in satisfaction of the ~~Issuer~~Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the ~~Issuer~~ Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the ~~Issuer~~ 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 ~~Issuer~~ Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common 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~~ Company acting through its Common Stock transfer agent may refuse to deliver the certificates representing the shares of Common 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~~sentence is paid. (f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The ~~Issuer~~ 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 ~~Issuer shall~~ Company will not adjust the Conversion Rate for any accrued and unpaid ~~interest on any converted Notes~~interest. The ~~Issuer~~Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but ~~not including~~excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~not including~~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~~ Notes, whether into cash or into a combination of cash and shares of Common 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 ~~shall~~ will receive the full amount of interest payable on such Notes on ~~the corresponding~~ such Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so ~~converted~~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 close of business on the Regular Record Date immediately preceding the Maturity Date; (2) if the Issuer has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the date on which the corresponding interest payment is made; (3) if the Issuer 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 ~~date~~ corresponding Interest Payment Date; (3) if the Company has specified a Redemption Date that is after a Regular Record Date and on ~~which~~ or prior to the second Business Day immediately following the corresponding ~~interest payment is made;~~ Interest Payment Date or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts ~~exists~~ exist at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity ~~Date or~~ Date, any Redemption Date shall receive the full interest payment due on the Maturity Date or such Redemption Date, as applicable, regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name any shares of Common Stock delivered upon conversion is registered shall be deemed to be the holder of record of such shares as of the close of business on the relevant Conversion Date (in the case of Physical Settlement) or the last Trading Day of the relevant Observation Period (in the case of 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 as of the time immediately prior to the close of business on the Conversion Date. (j) The Issuer shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common 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 Issuer has elected (or is deemed to have elected) Combination Settlement, the full number of 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 shares remaining after such computation shall be paid in cash.~~Fundamental Change Repurchase Date describ

Appears in 1 contract

Sources: Indenture (3d Systems Corp)

Conversion Procedure; Settlement Upon Conversion. (a) ~~Subject to this Section 14.02,~~ Except as provided in Section 14.03(b) and Section 14.07(a), upon conversion of any Note, on the ~~Issuer~~ second Business Day immediately following the last Trading Day of the relevant Observation Period, 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 (~~a “~~Cash Settlement”), shares~~ Settlement Amount” equal to the sum of ~~Common Stock~~the Daily Settlement Amounts for each of the 20 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 Stock in accordance with subsection (ji) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02. (i) All conversions for which the relevant Conversion Date occurs ~~on or after November 15, 2025, and all conversions for which the relevant Conversion Date occurs~~ after the ~~Issuer~~Company’s issuance of a Notice of 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 December 1, 2028 shall be settled using the same ~~Settlement Method. (ii)~~ forms and amounts of consideration. Except for any conversions for which the relevant Conversion Date occurs after the ~~Issuer~~Company’s issuance of a Notice of 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 ~~November 15~~December 1, ~~2025~~2028, the ~~Issuer~~ Company shall use the same ~~Settlement Method~~ forms and amounts of consideration for all conversions with the same Conversion Date, but the ~~Issuer~~ Company shall not have any obligation to use the same ~~Settlement Method~~ forms and amounts with respect to conversions with different Conversion Dates~~. (iii)~~ . If, in respect of any Conversion ~~Date~~Date (or one of the periods described in the third immediately succeeding set of parentheses, as the case may be), the ~~Issuer~~ Company elects to ~~deliver~~ settle all or a ~~notice~~ portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cash in respect of such Conversion Date (or such period, as the case may be), the Company shall inform converting Holders through the Conversion Agent (with a copy to the Trustee if not the Conversion Agent) of such election (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date, the Issuer shall deliver such Settlement Notice in writing to the Holders with a copy to the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Trading Day immediately following the ~~relevant~~ related 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 ~~Notice~~ with respect to the Notes and prior to the related Redemption Date, in such Redemption Notice or (y) on or after ~~November 15~~December 1, ~~2025~~2028, no later than ~~November 15~~December 1, ~~2025~~2028) and the Company shall indicate in such Settlement Notice the percentage of each share issuable upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”). If the ~~Issuer~~ Company does not elect a ~~Settlement Method~~ Cash Percentage prior to the deadline set forth in the immediately preceding sentence, the ~~Issuer~~ Company shall no longer have the right to elect a Cash ~~Settlement or Physical Settlement with respect to such conversion~~ Percentage and the ~~Issuer~~ 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 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 Issuer 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. (iv) The cash, shares of Common Stock or combination of cash and delivering shares of Common Stock in respect of the remainder (other than cash in lieu of any ~~conversion~~ fractional share), if any, of ~~Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Issuer elects to satisfy~~ its Conversion Obligation in ~~respect~~ excess of ~~such conversion by Physical Settlement,~~ the ~~Issuer shall deliver to~~ aggregate principal portion of the ~~converting Holder in respect of each $1,000 principal amount of~~ Notes being converted ~~a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date (and cash in lieu of fractional shares~~ as ~~provided~~ set forth herein);. (Bii) if the Issuer elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Issuer 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 40 consecutive Trading Days during the related Observation Period; and (C) if the Issuer elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Issuer 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 The Daily Settlement Amounts ~~for each of~~ (if applicable), the ~~40 consecutive Trading Days during the related Observation Period. (v) The~~ Daily Net Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the ~~Issuer~~ Company promptly following the last ~~day~~ VWAP Trading Day of the related Observation Period. Promptly ~~after such~~ thereafter, and in any event within one Business Day of determination of the Daily Settlement Amounts, the Daily Net 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 Stock, the ~~Issuer~~ 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~~ and, if applicable, the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (bi) ~~Subject to Section 14.02(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 14.02(h) and any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) and 14.02(g); and (ii) in To convert a Certificated Note, or when required by Applicable Procedures, 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 or by facsimile~~ 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 shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Issuer 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 ~~14.02(h) and any taxes payable as described in Section 14.02(d) or Section 14.02(e~~14.02(g). The Trustee (and if different, the Conversion Agent) shall notify the ~~Issuer~~ Company of any conversion pursuant to this Article 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 Issuer 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 (or, in the case of a Global Note, has complied with the Applicable Procedures with respect to such a withdrawal) in accordance with the terms of Section 15.03. If a Holder has already delivered a Fundamental Change Repurchase Notice, such ▇▇▇▇▇▇’s right to withdraw such notice and convert the Notes that are subject to repurchase shall terminate at the close of business on the Business Day immediately preceding the relevant Fundamental Change Repurchase Date. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in ~~subsection (b~~Section 14.02(b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Issuer 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 Issuer elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer 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 shares of Common Stock are due to converting Holders, the ~~Issuer~~ Company shall issue or cause to be issued, and deliver ~~to the Conversion Agent or~~ to such Holder, or such Holder’s nominee or nominees, ~~certificates or~~ a book-entry transfer through the Depositary for the full number of shares of Common Stock to which such Holder shall be entitled in satisfaction of the ~~Issuer~~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 ~~Issuer~~ Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder ~~of the Note~~ so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the ~~Issuer~~ 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 ~~Issuer~~ Company shall pay any documentary, stamp or similar issue or transfer tax due on the ~~issue~~ issuance of any shares of Common Stock upon ~~conversion~~conversion of such Note, 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~~ facilitate the delivery of the certificates representing the shares of Common 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 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14. (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 ~~Issuer~~ 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes~~. The ~~Issuer~~Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but ~~not including~~excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~not including~~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 Stock~~Notes, accrued and unpaid interest will 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 shall 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 any interest 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: (~~1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2~~i) if the ~~Issuer has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately~~ Notes are surrendered for conversion following the ~~date~~ close of business on ~~which the corresponding interest payment is made;~~ February 15, 2029; (3ii) if the ~~Issuer~~ 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 ~~date~~ corresponding Interest Payment Date; (iii) if the Company has specified a Redemption Date that is after a Regular Record Date and on ~~which~~ or prior to the second Scheduled Trading Day immediately following the corresponding ~~interest payment is made~~Interest Payment Date; or or (4iv) to the extent of any ~~Defaulted Amounts~~overdue interest, if any ~~Defaulted Amounts~~ overdue interest exists at the time of conversion with respect to such ~~Note~~Notes. Therefore, for the avoidance of doubt, all Holders of record on February 15, 2029 or on the Regular Record Date immediately preceding ~~the Maturity~~ any Fundamental Change Repurchase Date or any Redemption Date described in clause (ii) or (iii) above, as the case may be, shall receive and retain the full interest payment due on the Maturity Date or ~~such Redemption Date, as applicable,~~ other applicable Interest Payment Date regardless of whether their Notes have been converted following February 15, 2029 or such other Regular Record Date, as the case may be. (ih) The Person in whose name any shares of Common Stock delivered upon conversion is registered shall ~~be deemed to be~~ become the holder of record of such shares as of the close of business on the ~~relevant Conversion Date (in the case of Physical Settlement) or the~~ last VWAP Trading Day of the relevant Observation ~~Period (in the case of 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 of record as of ~~the time immediately prior to~~ the close of business on such Regular Record Date shall have the ~~Conversion~~ right to receive the interest payable on such Interest Payment Date, in accordance with Section 14.02(g). (ji) The ~~Issuer~~ Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of ~~delivering~~ any fractional share of Common 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 Issuer has elected (or is deemed to have elected) Combination Settlement~~, the full number of 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, subject to the last paragraph of Section 14.02(b), any fractional shares 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”), arrange to have such Notes exchanged in lieu of conversion by a financial institution designated by the Company (the “Designated Financial Institution”). If the Company makes an Exchange Election, no later than the second Business Day immediately following the relevant Conversion Date, the Company must deliver (or cause the Conversion Agent to deliver), such Notes surrendered for conversion to the Designated Financial Institution for exchange in lieu of conversion. In order to accept any Notes surrendered for conversion, the Designated Financial Institution must agree to timely pay and deliver, as the case may be, in exchange for such Notes, cash up to the aggregate principal amount of such Notes and cash, shares of Common Stock or a combination of cash and shares of Common Stock, at the Company’s election, in respect of the remainder, if any, of the Conversion Obligation in excess of the aggregate principal amount of such Notes that would otherwise be due upon conversion as described in Section 14.02(a) (the “Conversion Consideration”). If the Company makes an Exchange Election, the Company shall, by the close of business on the Trading Day following the relevant Conversion Date, notify the Trustee, the Conversion Agent (if other than the Trustee) and Holder surrendering Notes for conversion in writing that the Company has made the Exchange Election and the Company shall notify the Designated Financial Institution of the type of Conversion Consideration to be paid and delivered, as the case may be, and the relevant deadline for delivery of the relevant Conversion Consideration due upon conversion. Any Notes exchanged by the Designated Financial Institution shall remain outstanding, subject to the Applicable Procedures. If the Designated Financial Institution agrees to accept any Notes for exchange but does not timely deliver the related Conversion Consideration, or if such Designated Financial Institution does not accept the Notes for exchange, the Company shall deliver the relevant Conversion Consideration as if the Company had not made an Exchange Election. The Company’s designation of a financial institution to which the Notes may be submitted for exchange does not require the financial institution to accept any Notes (unless the financial institution has separately made an agreement with the Company). The Company may, but shall not be obligated to, enter into a separate agreement with any Designated Financial Institution that would compensate it for any such transaction.

Appears in 1 contract

Sources: Indenture (On Semiconductor Corp)

Conversion Procedure; Settlement Upon Conversion. (a) ~~Subject to this Section 14.02,~~ Except as provided in Section 14.03(b) and Section 14.07(a), upon conversion of any Note, on the ~~Issuer~~ second Business Day immediately following the last Trading Day of the relevant Observation Period, 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~~ an amount equal to the sum of ~~Common Stock~~the Daily Settlement Amounts for each of the 20 Trading Days during the relevant Observation Period for such Note, together with cash, if applicable, in lieu of delivering any fractional share of Class A Common Stock in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02. (i) All conversions for which the relevant Conversion Date occurs ~~on or after November 15, 2025, and all conversions for which the relevant Conversion Date occurs~~ after the ~~Issuer~~Company’s issuance of a Notice of 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 December 1, 2030 shall be settled using the same ~~Settlement Method. (ii)~~ forms and amounts of consideration. Except for any conversions for which the relevant Conversion Date occurs after the ~~Issuer~~Company’s issuance of a Notice of 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 ~~November 15~~December 1, ~~2025~~2030, the ~~Issuer~~ Company shall use the same ~~Settlement Method~~ forms and amounts of consideration for all conversions with the same Conversion Date, but the ~~Issuer~~ 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~~Date (or one of the periods described in the third immediately succeeding set of parentheses, as the case may be), the ~~Issuer~~ Company elects to ~~deliver~~ settle all or a ~~notice (the “Settlement Notice”)~~ portion of its Conversion Obligation in excess of the ~~relevant Settlement Method~~ principal portion of the Notes being converted in cash in respect of such Conversion ~~Date~~Date (or such period, as the case may be), the ~~Issuer~~ Company shall ~~deliver such Settlement Notice in writing to the Holders with a copy to~~ inform converting Holders, the Trustee and the Conversion Agent (if other than the Trustee) of such election (the “Settlement Notice”) no later than the close of business on the Trading Day immediately following the ~~relevant~~ related Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs (x) after the date of issuance of a Notice of Redemption ~~Notice~~ with respect to the Notes and prior to the related Redemption Date, in such Notice of Redemption ~~Notice~~ or (y) on or after ~~November 15~~December 1, ~~2025~~2030, no later than ~~November 15~~December 1, ~~2025~~2030) and the Company shall indicate in such Settlement Notice the percentage of each share issuable upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”). If the ~~Issuer~~ Company does not elect a ~~Settlement Method~~ Cash Percentage prior to the deadline set forth in the immediately preceding sentence, the ~~Issuer~~ Company shall no longer have the right to elect a Cash ~~Settlement or Physical Settlement with respect to such conversion~~ Percentage and the ~~Issuer~~ 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 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 Issuer 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. (iv) The cash, delivering shares of ~~Common Stock or combination of cash and shares of~~ Class A Common Stock in respect of ~~any conversion~~ the remainder, if any, of ~~Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Issuer elects to satisfy~~ its Conversion Obligation in ~~respect~~ excess of ~~such conversion by Physical Settlement,~~ the ~~Issuer shall deliver to~~ aggregate principal portion of the ~~converting Holder in respect of each $1,000 principal amount of~~ Notes being converted ~~a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date (and cash in lieu of fractional shares~~ as ~~provided~~ set forth herein);. (Bii) if the Issuer elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Issuer 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 40 consecutive Trading Days during the related Observation Period; and (C) if the Issuer elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Issuer 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 The Daily Settlement Amounts ~~for each of~~ (if applicable), the ~~40 consecutive Trading Days during the related Observation Period. (v) The~~ Daily Net Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the ~~Issuer~~ 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 Class A Common Stock, the ~~Issuer~~ 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 the amount of cash payable in lieu of delivering fractional shares of Class A Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section 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 14.02(h) and any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) 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 ~~or by facsimile~~ 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 Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the ~~Issuer~~ 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 14.02(h~~) and any taxes payable as described in Section 14.02(d) or Section 14.02(e~~). The Trustee (and if different, the Conversion Agent) shall notify the ~~Issuer~~ Company of any conversion pursuant to this 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 ~~Issuer~~ Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with 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. (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 14.03(b) and Section 14.07(a), the Issuer 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 Issuer elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer 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 shares of Class A Common Stock are due to a converting ~~Holders~~Holder, the ~~Issuer~~ 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 Stock to which such Holder shall be ~~entitled~~ entitled, in book-entry format through the Depositary, in satisfaction of the ~~Issuer~~Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the ~~Issuer~~ Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the ~~Issuer~~ 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 ~~Issuer~~ Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Class A Common 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 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 14.04, no adjustment shall be made for dividends on any shares of Class A Common Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The ~~Issuer~~ 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes~~. The ~~Issuer~~Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of ~~Notes into a combination of cash and shares of Common Stock~~Notes, accrued and unpaid ~~interest~~ 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 for the payment of Special Interest, and prior to the open of business on the corresponding Special Interest Payment Date, Holders of such Notes as of the close of business on such ~~Regular~~ Special Interest Record Date ~~shall~~ will receive the full amount of ~~interest~~ any Special Interest payable on such Notes on the corresponding Special Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any ~~Regular~~ Special Interest Record Date to the open of business on the immediately following Special Interest Payment Date must be accompanied by funds equal to the amount of ~~interest~~ any Special Interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the ~~Regular Record Date immediately preceding~~ close of business on February 15, 2031, if and to the extent Special Interest is payable on the Maturity Date; (2) if the ~~Issuer~~ Company has specified a Redemption Date that is after a ~~Regular~~ Special Interest Record Date and on or prior to the Scheduled Trading Day immediately following the corresponding Special Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Special Interest Record Date and on or prior to the Business Day immediately following the ~~date on which the~~ corresponding interest payment is made; (3) if the Issuer 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 date on which the corresponding interest payment is madeSpecial Interest Payment Date; or (4) to the extent of any ~~Defaulted Amounts~~overdue interest, if any ~~Defaulted Amounts~~ overdue interest exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on February 15, 2031 (if and to the ~~Regular Record Date immediately preceding~~ extent Special Interest is payable on the Maturity Date), Redemption Date or any ~~Redemption~~ Fundamental Change Repurchase Date described in (2) and (3) shall receive the full ~~interest~~ Special Interest payment due on the Maturity Date or ~~such Redemption Date, as applicable,~~ other applicable Special Interest Payment Date in cash regardless of whether their Notes have been converted following ~~such Regular~~ February 15, 2031, or any applicable Special Interest Record Date. (i) The Person in whose name any shares of Class A Common Stock ~~delivered~~ shall be issuable upon conversion ~~is registered~~ shall be ~~deemed to be the holder~~ treated as a stockholder of record ~~of such shares~~ as of the close of business on the ~~relevant Conversion Date (in the case of Physical Settlement) or the~~ last Trading Day of the relevant Observation ~~Period (in the case of 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 as of the time immediately prior to the close of business on the Conversion Date~~conversion. (j) The ~~Issuer~~ Company shall not issue any fractional share of Class A Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Class A Common 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 Issuer has elected (or is deemed to have elected) Combination Settlement,~~ the full number of ~~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 shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Sources: Indenture (Liberty Energy Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the ~~Issuer~~ 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 Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~November~~ February 15, ~~2025, and all conversions for which the relevant Conversion Date occurs after the Issuer’s issuance of~~ 2025 or during a Redemption ~~Notice with respect to the Notes and prior to the related Redemption Date~~Period, shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs ~~after the Issuer’s issuance of~~ during a Redemption ~~Notice with respect to the Notes but prior to the related Redemption Date~~ Period, and any conversions for which the relevant Conversion Date occurs on or after ~~November~~ February 15, 2025, the ~~Issuer~~ Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the ~~Issuer~~ 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 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 ~~Issuer~~ relevant Conversion Date occurs on or after February 15, 2025), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion ~~Date~~Date (or such period, as the case may be), the ~~Issuer~~ Company shall deliver such Settlement Notice ~~in writing~~ to ~~the Holders with a copy to~~ converting Holders, the Trustee and the Conversion Agent (if other than the Trustee) ), no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any ~~conversions~~ conversion for which the relevant Conversion Date occurs (x) ~~after the date of issuance of~~ during a Redemption ~~Notice with respect to the Notes and prior to~~ Period in the related Notice of Redemption ~~Date, in such Redemption Notice~~ or (y) on or after ~~November~~ February 15, 2025, no later than ~~November~~ the close of business on the Business Day immediately preceding February 15, 2025). If the ~~Issuer~~ Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the ~~Issuer shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to such conversion and the Issuer~~ 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 ~~Issuer~~ Company timely delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. For the avoidance of doubt, the Company’s failure to timely elect a Settlement Method or specify the applicable Specified Dollar Amount will not constitute a Default or Event of Default under this Indenture. (iv) The cash, shares of Common Stock or combination of cash and shares of Common Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the ~~Issuer~~ 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 Stock equal to the Conversion Rate in effect on the Conversion ~~Date (and cash in lieu of fractional shares as provided herein)~~Date; (B) if the ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the ~~Issuer~~ 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 40 consecutive Trading Days during the related Observation Period; and (C) if the ~~Issuer~~ Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the ~~Issuer~~ 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 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 ~~Issuer~~ 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 Stock, the ~~Issuer~~ 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 Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to 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 14.02(h) and any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) 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 ~~or by facsimile~~ 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 Obligation to be registered, (2) surrender such Notes, duly endorsed to the ~~Issuer~~ 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 14.02(h~~) and any taxes payable as described in Section 14.02(d) or Section 14.02(e~~). The Trustee (and if different, the Conversion Agent) shall notify the ~~Issuer~~ Company of any conversion pursuant to this 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 ~~Issuer~~ Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 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. (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 14.03(b) and Section 14.07(a), the ~~Issuer~~ 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 ~~Issuer~~ Company elects to satisfy its Conversion Obligation through Physical Settlement (provided ~~that for~~ that, with respect to any ~~Notes converted after the close of business on~~ Conversion Date following the Regular Record Date immediately preceding the Maturity ~~Date~~Date where Physical Settlement applies to the related conversion, the ~~Issuer shall deliver the consideration due in respect of the Conversion Obligation~~ 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 Stock are due to a converting ~~Holders~~Holder, the ~~Issuer~~ 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, ~~certificates or a book-entry transfer through the Depositary for~~ the full number of shares of Common Stock to which such Holder shall be ~~entitled~~ entitled, in book-entry format through the Depositary, in satisfaction of the ~~Issuer~~Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the ~~Issuer~~ Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the ~~Issuer~~ 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 ~~Issuer~~ Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common 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 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 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The ~~Issuer~~ 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 ~~Issuer~~ Company shall not adjust the Conversion Rate for any accrued and unpaid interest on ~~any converted~~ the Notes. The ~~Issuer~~Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but ~~not including~~excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~not including~~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 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 ~~shall~~ 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 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 ~~Issuer~~ Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the ~~Business~~ Trading Day immediately ~~following the date on which~~ succeeding the corresponding ~~interest payment is made~~Interest Payment Date; (3) if the ~~Issuer~~ 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 date on which~~ succeeding the corresponding ~~interest payment is made~~Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record at the close of business on the Regular Record Date immediately preceding the Maturity ~~Date or~~ 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 ~~such Redemption Date, as applicable,~~ other applicable Interest Payment Date in cash regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name ~~any~~ the shares of Common Stock ~~delivered~~ shall be issuable upon conversion ~~is registered~~ shall be ~~deemed to be~~ treated as the ~~holder~~ stockholder of record ~~of such shares~~ as of the close of business on the relevant Conversion Date (in if the ~~case of~~ Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (in if the ~~case of~~ Company elects 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 as of the time immediately prior to the close of business on the Conversion Date~~conversion. (j) The ~~Issuer~~ Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common 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 ~~Issuer~~ Company has elected (or is deemed to have elected) Combination Settlement, the full number of 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 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 14.02,~~ Except as provided in Section 14.03(b) and Section 14.07(a), upon conversion of any Note, on the ~~Issuer~~ second Business Day immediately following the last Trading Day of the relevant Observation Period, 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 (~~a “~~Cash Settlement”), shares~~ Settlement Amount” equal to the sum of ~~Common Stock~~the Daily Settlement Amounts for each of the 40 Trading Days during the relevant Observation Period for such Note, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02. (i) All conversions for which the relevant Conversion Date occurs ~~on or after November 15, 2025, and all conversions for which the relevant Conversion Date occurs~~ after the ~~Issuer~~Company’s issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption ~~Date,~~ Date shall be settled using the same ~~Settlement Method. (ii)~~ forms and amounts of consideration, and all conversions for which the relevant Conversion Date occurs on or after March 15, 2030 shall be settled using the same forms and amounts of consideration. Except for any conversions for which the relevant Conversion Date occurs after the ~~Issuer’s~~ Company's issuance of a Redemption Notice with respect to the Notes but prior to the related Redemption ~~Date~~ Date, and any conversions for which the relevant Conversion Date occurs on or after ~~November~~ March 15, ~~2025~~2030, the ~~Issuer~~ Company shall use the same ~~Settlement Method~~ forms and amounts of consideration for all conversions with the same Conversion Date, but the ~~Issuer~~ Company shall not have any obligation to use the same ~~Settlement Method~~ forms and amounts with respect to conversions with different Conversion Dates~~. (iii)~~ . If, in respect of any Conversion ~~Date~~Date (or one of the periods described in the second immediately succeeding set of parentheses, as the case may be), the ~~Issuer~~ Company elects to ~~deliver~~ settle all or a ~~notice~~ portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cash, the Company shall inform converting Holders through the Trustee of such election (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date, the Issuer shall deliver such Settlement Notice in writing to the Holders with a copy to the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Trading Day immediately following the ~~relevant~~ related 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~~ Notice, or (y) on or after ~~November~~ March 15, ~~2025~~2030, no later than ~~November~~ March 15, ~~2025~~2030) and the Company shall indicate in such Settlement Notice the percentage of each share issuable upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”). If the ~~Issuer~~ Company does not elect a ~~Settlement Method~~ Cash Percentage prior to the deadline set forth in the immediately preceding sentence, the ~~Issuer~~ Company shall no longer have the right to elect a Cash ~~Settlement or Physical Settlement with respect to such conversion~~ Percentage and the ~~Issuer~~ 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 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 Issuer 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. (iv) The cash, shares of Common Stock or combination of cash and delivering shares of Common Stock in respect of ~~any conversion~~ the remainder, if any, of ~~Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Issuer elects to satisfy~~ its Conversion Obligation in ~~respect~~ excess of ~~such conversion by Physical Settlement,~~ the ~~Issuer shall deliver to~~ aggregate principal portion of the ~~converting Holder in respect of each $1,000 principal amount of~~ Notes being converted ~~a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date (and cash in lieu of fractional shares~~ as ~~provided~~ set forth herein);. (Bii) if the Issuer elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Issuer 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 40 consecutive Trading Days during the related Observation Period; and (C) if the Issuer elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Issuer 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 The Daily Settlement Amounts ~~for each of~~ (if applicable), the ~~40 consecutive Trading Days during the related Observation Period. (v) The~~ Daily Net Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the ~~Issuer~~ Company promptly following the last day of the relevant 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 Stock, the ~~Issuer~~ 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 the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section 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 any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) 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 ~~or by facsimile~~ 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 Obligation to be registered, (2) surrender such Notes, duly endorsed to the ~~Issuer~~ 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 14.02(h~~) and any taxes payable as described in Section 14.02(d) or Section 14.02(e~~). The Trustee (and if different, the Conversion Agent) shall notify the ~~Issuer~~ Company of any conversion pursuant to this 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 ~~Issuer~~ Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~15.03~~15.02. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Issuer 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 Issuer elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer 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 shares of Common Stock are due to a converting ~~Holders~~Holder, the ~~Issuer~~ 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 Stock to which such Holder shall be ~~entitled~~ entitled, in book-entry format through the Depositary, in satisfaction of the ~~Issuer~~Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the ~~Issuer~~ Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the ~~Issuer~~ 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 ~~Issuer~~ Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common 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 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 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The ~~Issuer~~ 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes~~. The ~~Issuer~~Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of ~~Notes into a combination of cash and shares of Common Stock~~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, Holders of such Notes as of the close of business on such Regular Record Date ~~shall~~ 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 full amount of interest 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 ~~Issuer~~ Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made~~Interest Payment Date; (3) if the ~~Issuer~~ 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 ~~date on which the~~ corresponding ~~interest payment is made~~Interest Payment Date; or (4) to the extent of any ~~Defaulted Amounts~~overdue interest, if any ~~Defaulted Amounts exists~~ such overdue 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 ~~or any Redemption Date~~ shall receive the full interest payment due on the Maturity Date ~~or such Redemption Date, as applicable,~~ in cash regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name ~~any~~ the shares of Common Stock ~~delivered~~ shall be issuable upon conversion ~~is registered~~ shall be ~~deemed to be the holder~~ treated as a stockholder of record ~~of such shares~~ as of the close of business on the ~~relevant Conversion Date (in the case of Physical Settlement) or the~~ last Trading Day of the ~~relevant~~ related Observation ~~Period (in the case of 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 as of the time immediately prior to the close of business on the Conversion Date~~conversion. (j) The ~~Issuer~~ Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common 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 Issuer has elected (or is deemed to have elected) Combination Settlement~~, the full number of 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 shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Sources: Indenture (Vishay Intertechnology Inc)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~14.02, Section 14.03(b)~~ 14.02 and Section ~~14.07(a~~14.06(a), upon conversion of any Note, the ~~Issuer~~ 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 Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02. (i) All conversions for which the relevant Conversion ~~Date~~ Dates occurs (x) on or after November 15, ~~2025, and all conversions for which~~ 2027 shall be settled using the ~~relevant Conversion Date occurs after the Issuer’s issuance of~~ same Settlement Method or (y) during a Redemption ~~Notice with respect to the Notes and prior to the related Redemption Date,~~ Period shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs ~~after the Issuer’s issuance of~~ during a Redemption ~~Notice with respect to the Notes but prior to the related Redemption Date~~ Period and any conversions for which the relevant Conversion Date occurs on or after November 15, ~~2025~~2027, the ~~Issuer~~ Company shall use the same Settlement Method for all conversions ~~with~~ occurring on the same Conversion Date, but the ~~Issuer~~ 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~~Date (or in the case of any conversions occurring (x) during a Redemption Period or (y) on or after November 15, 2027), the ~~Issuer~~ Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion ~~Date~~Date (or such period, as the case may be), the ~~Issuer~~ Company shall deliver such Settlement Notice ~~in writing~~ to ~~the Holders with a copy to~~ converting Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Scheduled Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions ~~for which the relevant Conversion Date occurs~~ occurring (x) ~~after the date of issuance of~~ during a Redemption ~~Notice with respect to the Notes and prior to the related Redemption Date~~Period, in such Redemption ~~Notice~~ Notice, or (y) on or after November 15, ~~2025~~2027, no later than the close of business on Scheduled Trading Day immediately preceding November 15, ~~2025~~2027) (in each case, the “Settlement Method Election Deadline”). If the ~~Issuer~~ Company does not timely elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the ~~Issuer~~ Company shall no longer have the right to elect Cash Settlement or ~~Physical~~ Combination Settlement ~~with respect to~~ for such ~~conversion~~ Conversion Date or during such period and the ~~Issuer~~ 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 ~~Issuer~~ Company timely 56 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, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to November 15, 2027, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of at least $1,000 for all Conversion Dates occurring subsequent to delivery of such notice. If the Company irrevocably elects Combination Settlement with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above a specific amount, the Company will, after the date of such election, inform Holders converting their Notes, the Trustee and the Conversion Agent (if other than the Trustee) of such Specified Dollar Amount no later than the relevant Settlement Method Election Deadline, or, if the Company does not timely notify Holders, the Trustee and the Conversion Agent (if other than the Trustee), such Specified Dollar Amount will be the specific amount set forth in the Settlement Notice or, if no specific amount was set forth in the Settlement Notice, such Specified Dollar Amount will be $1,000 per $1,000 principal amount of Notes. The irrevocable election will apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such notice; provided, however, that no such election will affect any settlement method theretofore elected (or deemed to be elected) with respect to any Note. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes. However, the Company may nonetheless choose to execute such an amendment at its option. If the Company irrevocably fixes the Settlement Method pursuant to this Section 14.02(a)(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 Stock or combination of cash and shares of Common Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: : (A) if the ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the ~~Issuer~~ 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 Stock equal to the Conversion Rate in effect on the Conversion ~~Date (and cash in lieu of fractional shares as provided herein);~~ Date; (B) if the ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the ~~Issuer~~ 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 57 each of the 40 30 consecutive Trading Days during the related Observation Period; ~~and~~ and (C) if the ~~Issuer~~ Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the ~~Issuer~~ 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 40 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 ~~Issuer~~ 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 Stock, the ~~Issuer~~ 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 Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to 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 14.02(h) and any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) 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 ~~or by facsimile~~ 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 Obligation to be registered, (2) surrender such Notes, duly endorsed to the ~~Issuer~~ 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 14.02(h~~) and any taxes payable as described in Section 14.02(d) or Section 14.02(e~~). The Trustee (~~and~~ and, if different, the Conversion Agent) shall notify the ~~Issuer~~ Company of any conversion pursuant to this 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 ~~Issuer~~ Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with 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 58 the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section ~~14.03(b) and Section 14.07(a~~14.06(a), the ~~Issuer~~ 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 ~~Issuer~~ Company elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer shall deliver the consideration due in respect of the Conversion Obligation on the Maturity Date)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 Stock are due to a converting ~~Holders~~Holder, the ~~Issuer~~ Company shall issue or cause to be issued, and deliver to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common Stock to which such Holder shall be entitled in satisfaction of the ~~Issuer~~Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the ~~Issuer~~ Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the ~~Issuer~~ 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 ~~Issuer~~ Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common 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~~ such tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common 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 ~~14.04~~14.03, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The ~~Issuer~~ 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes~~. The ~~Issuer~~Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common 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 shall receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Issuer has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the date on which the corresponding interest payment is made; (3) if the Issuer 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 date on which the corresponding interest payment is made; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date or any Redemption Date shall receive the full interest payment due on the Maturity Date or such Redemption Date, as applicable, regardless of whether their Notes have been converted following such Regular Record Date.principal (i) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be ~~deemed to be the holder~~ treated as a stockholder of record ~~of such shares~~ as of the close of business on the relevant Conversion Date (in if the ~~case of~~ Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (in if the ~~case of~~ Company elects 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 as of the time immediately prior to the close of business on the Conversion Date~~conversion. (j) The ~~Issuer~~ Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common 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 ~~Issuer~~ Company has elected (or is deemed to have elected) Combination Settlement, the full number of 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 shares remaining after such computation shall be paid in cash. 60 Section 14.03.

Appears in 1 contract

Sources: Indenture (Pacific Biosciences of California, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~14.02~~13.02, Section ~~14.03(b~~13.03(b) and Section ~~14.07(a~~13.07(a), upon conversion of any Note, the ~~Issuer~~ 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 Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section ~~14.02~~ 13.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section ~~14.02~~ 13.02 (“Combination Settlement”), at its election, as set forth in this Section ~~14.02~~13.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~November~~ December 15, ~~2025, and all conversions for which the relevant Conversion Date occurs after the Issuer’s issuance of~~ 2024 or during a Redemption ~~Notice with respect to the Notes and prior to the related Redemption Date,~~ Period shall be settled using the same Settlement Method. (ii) Except for any conversions ~~for which~~ described in the relevant Conversion Date occurs after the Issuer’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 November 15, 2025immediately preceding clause (i), the ~~Issuer~~ Company shall use the same Settlement Method for all conversions ~~with~~ occurring on the same Conversion Date, but the ~~Issuer~~ 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~~Date (or the period described in clause (i) above), as the case may be), the ~~Issuer~~ Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion ~~Date~~Date (or such period, as the case may be), the ~~Issuer~~ Company shall deliver such Settlement Notice ~~in writing~~ to ~~the Holders with a copy to~~ converting Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs (xi) ~~after the date of issuance of~~ during a Redemption ~~Notice with respect to the Notes and prior to~~ Period, in the related ~~Redemption Date, in such~~ Redemption Notice or (yii) on or after ~~November~~ December 15, ~~2025~~2024, no later than ~~November~~ the close of business on Scheduled Trading Day immediately preceding March 15, ~~2025~~2024). If the ~~Issuer~~ Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the ~~Issuer~~ Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to such conversion or during such period and the ~~Issuer~~ 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 ~~Issuer~~ 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. Notwithstanding the foregoing, any conversion of Sponsor Notes shall be subject to Section 13.02(a)(v). (iv) The cash, shares of Common Stock or combination of cash and shares of Common Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) Subject to clause (D) below, if the ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the ~~Issuer~~ 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 Stock equal to the Conversion Rate in effect on the Conversion ~~Date (and cash in lieu of fractional shares as provided herein)~~Date; (B) Subject to clause (D) below, if the ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the ~~Issuer~~ 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 40 30 consecutive Trading Days during the related Observation Period~~; and~~; (C) Subject to clause (D) below, if the ~~Issuer~~ Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the ~~Issuer~~ 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 40 30 consecutive Trading Days during the related Observation Period; and (D) to the extent a Holder of a Sponsor Note submits a Notice of Conversion with respect to a Sponsor Note following a Redemption Notice and prior to the close of business on the Scheduled Trading Day immediately preceding the related Redemption Date, the Company shall pay the converting Holder in respect of each $1,000 principal amount of Notes being converted, the Settlement Amount due calculated by using the Settlement Method set forth in the Sponsor Election Notice. (v) Notwithstanding anything herein to the contrary, (1) subject to clause (2), the Company hereby initially elects to satisfy its Conversion Obligation with respect to any conversion of Sponsor Notes by Combination Settlement with a Specified Dollar Amount of $1,000 per $1,000 principal amount of Notes and (2) following a Redemption Notice and prior to the close of business on the Scheduled Trading Day immediately preceding the related Redemption Date, a Holder of a Sponsor Notes may only convert such Notes if such Holder delivers, concurrently with such conversion, a written notice to the Company, specifying the Settlement Method (and, in the case of Combination Settlement, the Specified Dollar Amount) that shall apply (such notice, a “Sponsor Election Notice”) for any conversion of such Holder’s Notes following the Redemption Notice and prior to the close of business on the Scheduled Trading Day immediately preceding the Redemption Date. The Company shall, promptly following receipt of a Sponsor Election Notice, provide a copy to the Trustee and the Conversion Agent (if other than the Trustee). The Company may change its Settlement Method election (and, in the case of Combination Settlement, the Specified Dollar Amount) with respect to any conversion of Sponsor Notes (other than a conversion following a Redemption Notice and prior to the related Redemption Date) by delivering a notice that specifies the newly elected Settlement Method and, in the case of Combination Settlement, the applicable Specified Dollar Amount (the “Sponsor Settlement Notice”) to the Holders of the Sponsor Notes (with a copy to the Trustee and the Conversion Agent (if other than the Trustee), and such newly elected Settlement Method (and, in the case of Combination Settlement, the Specified Dollar Amount) shall be effective no earlier than ten (10) Trading Days after the date on which such Sponsor Settlement Notice was received by the Holder. In the event any Holder(s) of Sponsor Notes exercises its right to convert all or any portion of such Sponsor Notes, (A) the relevant Observation Period for purposes of determining the Daily Settlement Amount, in the case of Combination Settlement, and Daily Conversion Values, in the case of Cash Settlement, with respect to such Sponsor Notes shall be the 30 consecutive Trading Day period beginning on, and including, the 31st Trading Day immediately preceding the applicable Conversion Date and ending on the Trading Day immediately preceding such Conversion Date and (B) the Company shall promptly (x) determine the Daily Settlement Amount 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 Stock and (y) notify the Trustee, the Conversion Agent (if other than the Trustee) and such Holder of Sponsor Notes being so converted of the Daily Settlement Amount 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 Stock. (vi) With respect to Notes that are not Sponsor Notes, the Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the ~~Issuer~~ 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, with respect to Notes that are not Sponsor Notes and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the ~~Issuer~~ 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 Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (vii) Subject to Section 13.02(a)(v), at any time prior to December 15, 2024, the Company may irrevocably elect Cash Settlement to satisfy its Conversion Obligation in respect of Notes to be converted after the date of such election, or irrevocably elect Combination Settlement and a Specified Dollar Amount (which amount shall be at least $1,000 per $1,000 principal amount of Notes) to satisfy its Conversion Obligation in respect of Notes to be converted after the date of such election. Upon making any election pursuant to this Section 13.02(a)(vii), the Company shall promptly (A) use its reasonable efforts to post information relating to such election on its website or otherwise publicly disclose such information, and (B) give written notice of such election to the Holders of the Notes. (b) Subject to Section ~~14.02(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 14.02(h) and any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights13.02(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 ~~or by facsimile~~ 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 Obligation to be registered, (2) surrender such Notes, duly endorsed to the ~~Issuer~~ 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 ~~14.02(h) and any taxes payable as described in Section 14.02(d) or Section 14.02(e~~13.02(h). The Trustee (~~and~~ and, if different, the Conversion Agent) shall notify the ~~Issuer~~ Company of any conversion pursuant to this Article 14 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 ~~Issuer~~ Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~15.03~~14.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section ~~14.03(b~~13.03(b) and Section ~~14.07(a~~13.07(a), in the ~~Issuer~~ case of any conversion of Notes other than Sponsor Notes, 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 ~~Issuer~~ Company elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer shall deliver the consideration due in respect of the Conversion Obligation on the Maturity Date)Settlement, or on the second Business Day immediately following the last Trading Day of the relevant Observation Period, in the case of Cash Settlement or Combination Settlement. In the case of any conversion of Sponsor Notes, 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 unless otherwise specified in the written notice referred to in the proviso below; provided, however, that (i) to the extent all or a portion of the Conversion Obligation is paid in cash, such cash shall not be due until the earlier of (A) the 30th Business Day immediately following the relevant Conversion Date and (B) the Maturity Date, and (ii) to the extent all or a portion of the Conversion Obligation is to be paid in shares of Common Stock, such shares shall be delivered on the day specified in a written notice from the beneficial owner(s) of the Sponsor Notes being converted that is delivered to the Company on or prior to the Business Day immediately following the relevant Conversion Date, which delivery date (in respect of such shares of Common Stock) shall be the second Business Day immediately following the relevant Conversion Date (it being understood that if no such notice is delivered to the Company, then the Company shall deliver such shares on the second Business Day immediately following the relevant Conversion Date). Such written notice shall include a certification therein that the beneficial owners delivering such written notice are holders that hold beneficial interests in the Sponsor Notes subject to conversion. The Company shall promptly notify the Trustee and the Conversion Agent (if other ~~Settlement Method~~than the Trustee) in writing of the Conversion Date for such Sponsor Notes. If any shares of Common Stock are due to converting Holders, the ~~Issuer~~ Company shall issue or cause to be issued, and deliver to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common Stock to which such Holder shall be entitled in satisfaction of the ~~Issuer~~Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the ~~Issuer~~ Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the ~~Issuer~~ 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 ~~Issuer~~ Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common 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 or refuse to instruct the stock transfer agent to deliver the certificates representing the shares of Common 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 ~~14.04~~13.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Issuer 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes. The Issuer’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common 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 shall receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Issuer has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the date on which the corresponding interest payment is made; (3) if the Issuer 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 date on which the corresponding interest payment is made; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date or any Redemption Date shall receive the full interest payment due on the Maturity Date or such Redemption Date, as applicable, regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name any shares of Common Stock delivered upon conversion is registered shall be deemed to be the holder of record of such shares as of the close of business on the relevant Conversion Date (in the case of Physical Settlement) or the last Trading Day of the relevant Observation Period (in the case of 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 as of the time immediately prior to the close of business on the Conversion Date. (j) The Issuer shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common 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 Issuer has elected (or is deemed to have elected) Combination Settlement, the full number of 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 shares remaining after such computation shall be paid in cash.dividend

Appears in 1 contract

Sources: Indenture (Twitter, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this ~~Section~~ ‎Section 14.02, ~~Section~~ ‎Section 14.03(b) and ~~Section~~ ‎Section 14.07(a), upon conversion of any Note, the ~~Issuer~~ Company shall pay ~~or deliver~~and, ~~as the case may be~~if applicable, deliver to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, ~~cash (~~a “~~Cash Settlement”), shares~~ Settlement Amount” equal to the sum of ~~Common Stock~~the Daily Settlement Amounts for each of the 50 Trading Days during the relevant Observation Period, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j‎(j) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section ‎‎Section 14.02. (i) All conversions for which the relevant Conversion Date occurs ~~on or after November 15, 2025, and all conversions for which the relevant Conversion Date occurs~~ after the ~~Issuer~~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 December 15, 2029 shall be settled using the same ~~Settlement Method~~Cash Percentage. (ii) Except for any conversions for which the relevant Conversion Date occurs after the ~~Issuer~~Company’s issuance of a Redemption Notice with respect to the Notes but prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption ~~Date~~ Date, and any conversions for which the relevant Conversion Date occurs on or after ~~November~~ December 15, ~~2025~~2029, the ~~Issuer~~ Company shall use the same ~~Settlement Method~~ Cash Percentage for all conversions ~~with~~ occurring on the same Conversion Date, but the ~~Issuer~~ Company shall not have any obligation to use the same ~~Settlement Method~~ Cash Percentage with respect to conversions ~~with~~ occurring on different Conversion Dates. (iii) If, in respect of any Conversion ~~Date~~Date (or one of the periods described in the fourth immediately succeeding set of parentheses, as the case may be), the ~~Issuer~~ Company elects to ~~deliver~~ settle all or a ~~notice (the “Settlement Notice”)~~ portion of its Conversion Obligation in excess of the ~~relevant Settlement Method~~ principal amount of the Notes being converted in cash in respect of such Conversion ~~Date~~Date (or such period, as the case may be), the ~~Issuer~~ Company shall ~~deliver such Settlement Notice in writing to the Holders with a copy to~~ inform converting Holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of such election (the “Settlement Notice”) no later than the close of business on the Trading Day immediately following the ~~relevant~~ related Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs (xi) 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 (yii) on or after ~~November~~ December 15, ~~2025~~2029, no later than ~~November~~ December 15, ~~2025~~2029) and the Company shall indicate in such Settlement Notice the percentage of the consideration due upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”). If the ~~Issuer~~ Company does not ~~elect a Settlement Method prior to the deadline set forth~~ timely make such an election as described in the immediately preceding sentence, the ~~Issuer shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to such conversion and the Issuer~~ Company shall be deemed to have elected ~~Combination Settlement~~ a Cash Percentage of 0% and the Company shall 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 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 Issuer 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. (iv) The cash, shares of Common Stock or combination of cash and delivering shares of Common Stock in respect of ~~any conversion~~ the remainder, if any, of ~~Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Issuer elects to satisfy~~ its Conversion Obligation in ~~respect~~ excess of ~~such conversion by Physical Settlement,~~ the ~~Issuer shall deliver to~~ aggregate principal portion of the ~~converting Holder in respect of each $1,000 principal amount of~~ Notes being converted ~~a number of shares of Common Stock equal~~ as set forth herein (subject to ~~the Conversion Rate in effect on the Conversion Date (and cash in lieu of fractional shares as provided herein~~‎Section 14.02(j);). (Biv) ~~if the Issuer elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement~~The Daily Settlement Amounts, the ~~Issuer 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~~ Daily Net Settlement Amounts, the Daily Conversion Values ~~for each of~~ and the 40 consecutive Trading Days during the related Observation Period; and (C) if the Issuer elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Issuer 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 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 ~~Issuer~~ Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement ~~Amounts or~~ Amounts, the Daily Net Settlement Amounts, the Daily Conversion ~~Values~~Values and the Settlement Amount, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the ~~Issuer~~ 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~~Values and the Settlement Amount, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to ~~Section~~ ‎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~~ ‎Section 14.02(h) ~~and any~~ and/or all transfer or similar taxes ~~payable~~ as ~~described~~ set forth in Section ~~14.02(d) or Section~~ 14.02(e~~) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights~~) 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 ~~or by facsimile~~ 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 Obligation to be registered, (2) surrender such Notes, duly endorsed to the ~~Issuer~~ 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~~ ‎Section 14.02(h) and ~~any taxes payable as described in Section 14.02(d~~(5) or if required by Section 14.02(e), pay any transfer or similar taxes. The Trustee (and if different, the Conversion Agent) shall notify the ~~Issuer~~ Company of any conversion pursuant to this ~~Article~~ ‎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 ~~Issuer~~ Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with ~~Section~~ ‎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. (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~~ ‎‎Section 14.03(b) and ~~Section~~ ‎Section 14.07(a), the ~~Issuer~~ Company shall pay ~~or deliver~~and, ~~as the case may be~~if applicable, deliver the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Issuer elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer 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 shares of Common Stock are due to a converting ~~Holders~~Holder, the ~~Issuer~~ 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, ~~certificates or a book-entry transfer through the Depositary for~~ the full number of shares of Common Stock to which such Holder shall be ~~entitled~~ entitled, in book-entry format through the Depositary, in satisfaction of the ~~Issuer~~Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the ~~Issuer~~ Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the ~~Issuer~~ 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 ~~Issuer~~ Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common 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 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~~ ‎Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The ~~Issuer~~ 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 ~~Issuer~~ Company shall not be required to adjust the Conversion Rate for any accrued and unpaid ~~interest on any converted Notes~~interest. The ~~Issuer~~Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of ~~Notes into a combination of cash and shares of Common Stock~~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 ~~shall~~ will receive the full amount of interest payable on such Notes on ~~the corresponding~~ such Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so ~~converted~~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 ~~Issuer~~ Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the ~~Business~~ second Scheduled Trading Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made~~Interest Payment Date; (3) if the ~~Issuer~~ 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 ~~date on which the~~ corresponding ~~interest payment is made~~Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record as of the close of business on the Regular Record Date immediately preceding the Maturity ~~Date or~~ Date, any Redemption Date ~~shall~~ described in clause (2) above or any Fundamental Change Repurchase Date described in clause (3) above shall, in each case, receive the full interest payment due on the Maturity Date or ~~such Redemption~~ the applicable Interest Payment Date, as ~~applicable~~the case may be, in cash regardless of whether their Notes have been converted following such Regular Record Date, and the converting Holder shall not be required to make a corresponding payment. (i) The Person in whose name ~~any~~ the shares of Common Stock ~~delivered~~ shall be issuable upon conversion ~~is registered~~ shall be ~~deemed to be the holder~~ treated as a stockholder of record ~~of such shares~~ as of the close of business on the ~~relevant Conversion Date (in the case of Physical Settlement) or the~~ last Trading Day of the relevant Observation ~~Period (in the case of 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 as of the time immediately prior to the close of business on the Conversion Date~~conversion. (j) The ~~Issuer~~ Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common 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 Issuer has elected (or is deemed to have elected) Combination Settlement~~, the full number of shares that shall be issued upon conversion ~~thereof~~ thereof, if any, shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Sources: Indenture (Granite Construction Inc)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the ~~Issuer~~ 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 Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02. (i) All conversions for which the relevant Conversion Date occurs ~~on or after November 15, 2025, and all conversions for which the relevant Conversion Date occurs~~ after the ~~Issuer~~Company’s issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date, all conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Fundamental Change Company Notice with respect to the Notes and prior to the related Fundamental Change Repurchase Date and all conversions for which the relevant Conversion Date occurs on or after September 15, 2026 shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs after the ~~Issuer~~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 after the Company’s issuance of a Fundamental Change Company Notice with respect to the Notes but prior to the related Fundamental Change Repurchase Date and any conversions for which the relevant Conversion Date occurs on or after ~~November~~ September 15, ~~2025~~2026, the ~~Issuer~~ Company shall use the same Settlement Method for all conversions ~~with~~ occurring on the same Conversion Date, but the ~~Issuer~~ 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~~Date (or any conversion occurring on or after September 15, 2026, as the case may be), the ~~Issuer elects~~ Company desires to ~~deliver~~ settle conversions using a method other than the Default Method then in effect, it shall post on its website a notice (~~the~~ a “Settlement Notice”) of such different Settlement Method, and such different settlement method shall be in effect with respect to respect of any Conversion Date on or after the ~~relevant~~ second Business Day following the posting of such Settlement ~~Method~~ Notice. The Company may post one or more subsequent Settlement Notices in respect of ~~such~~ any Conversion ~~Date,~~ Date occurring on or after the ~~Issuer shall deliver~~ second Business Day following the date of posting of such Settlement Notice in writing to the Holders with a copy to the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (orNotice, provided that, 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, the relevant Settlement Method must be specified in such Redemption Notice, (y) after the date of issuance of a Fundamental Change Company Notice with respect to the Notes and prior to the related Fundamental Change Repurchase Date, the relevant Settlement Method must be specified in such Fundamental Change Company Notice, or (yz) on or after ~~November~~ September 15, ~~2025~~2026, the relevant Settlement Method must be specified with a Settlement Notice posted no later than ~~November~~ the close of business on the second Business Day immediately preceding September 15, ~~2025~~2026). If the ~~Issuer~~ Company does not timely elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the ~~Issuer~~ Company shall no longer have the right to elect Cash Settlement or ~~Physical~~ Combination Settlement ~~with respect to~~ for such conversion or during such period and the ~~Issuer~~ Company shall be deemed to have elected ~~Combination~~ Physical Settlement in respect of its Conversion ~~Obligation~~Obligation (the initial “Default Method”). Upon any receipt of a Notice of Conversion, the Company shall deliver a copy of the then effective Settlement Notice to converting Holders, the Trustee and the ~~Specified Dollar Amount per $1,000 principal amount~~ Conversion Agent (if other than the Trustee) no later than the close of ~~Notes shall be equal to $1,000~~business on the Trading Day immediately following the relevant Conversion Date. ~~Such~~ Any Settlement Notice posted shall specify the relevant Settlement Method that will be in effect after the posting of such Settlement Notice 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 ~~Issuer delivers~~ Company posts 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. (iv) The cash, shares of Common Stock or combination of cash and shares of Common 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 ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the ~~Issuer~~ 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 Stock equal to the Conversion Rate in effect on the Conversion ~~Date (and cash in lieu of fractional shares as provided herein);~~Date; (B) if the ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the ~~Issuer~~ 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 40 consecutive Trading Days during the related Observation ~~Period;~~ Period; and (C) if the ~~Issuer~~ Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the ~~Issuer~~ 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 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 ~~Issuer~~ 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 Stock, the ~~Issuer~~ 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 Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (vi) By written notice to all Holders (with a copy to the Trustee and the Conversion Agent), the Company may, prior to September 15, 2026, at its option, elect to irrevocably fix the Settlement Method to any Settlement Method that the Company is then permitted to elect, including Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 or with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above a specific amount (the “Minimum Specified Amount”) set forth in such election notice. If the Company irrevocably elects Combination Settlement with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above a specific amount, the Company shall send written notice to Holders converting their Notes, the Trustee and the Conversion Agent of such Specified Dollar Amount no later than the relevant deadline for election of a Settlement Method as described in Section 14.02(a)(iii), or, if the Company does not timely notify Holders, such Specified Dollar Amount shall be the Minimum Specified Amount set forth in the election notice, unless no Minimum Specified Amount was set forth in the election notice, in which case such Specified Dollar Amount shall be $1,000 per $1,000 principal amount of Notes. The irrevocable election shall apply to all conversions on Conversion Dates occurring subsequent to delivery of such notice; provided that no such election will affect any Settlement Method theretofore elected (or deemed to be elected) with respect to any Note. For the avoidance of doubt, such an irrevocable election, if made, shall be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.02(i). However, the Company may nonetheless choose to execute such an amendment at its option. If the Company irrevocably fixes the Settlement Method pursuant to this Section 14.02(a)(vi), then, concurrently with providing written notice to Holders of such election, the Company shall either post the fixed Settlement Method on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission. (b) Subject to Section 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 any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) and (ii) in the case of a Book-Entry Note or 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 ~~or by facsimile~~ 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 Obligation to be registered, (2) surrender such Notes, duly endorsed to the ~~Issuer~~ 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 14.02(h~~) and any taxes payable as described in Section 14.02(d) or Section 14.02(e~~). The Trustee (~~and~~ and, if different, the Conversion Agent) shall notify the ~~Issuer~~ Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No ~~Notice of Conversion with respect to any~~ Notes may be surrendered for conversion by a Holder thereof if such ~~Holder~~ H▇▇▇▇▇ has also delivered a Fundamental Change Repurchase Notice to the ~~Issuer~~ Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with 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. (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 14.03(b) and Section 14.07(a), the ~~Issuer~~ 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 ~~Issuer elects~~ Company has elected Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer shall deliver the consideration due in respect of the Conversion Obligation on the Maturity Date)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 Stock are due to converting Holders, the ~~Issuer~~ Company shall issue or cause to be issued, and deliver to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common Stock to which such Holder shall be entitled in satisfaction of the ~~Issuer~~Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the ~~Issuer~~ Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the ~~Issuer~~ 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 ~~Issuer~~ Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common 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 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 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The ~~Issuer~~ 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 ~~Issuer~~ Conversion Rate shall not ~~adjust the Conversion Rate~~ be adjusted for any accrued ~~and unpaid~~ interest on ~~any converted Notes~~Notes converted. The ~~Issuer~~Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common 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 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 and prior to the open of business on the ~~immediately following~~ corresponding Interest Payment Date ~~must~~ in the circumstances set forth in clauses (1)-(3) of this sentence, for each $1,000 of the PIK Payment due for such Note on such corresponding Interest Payment Date, the Holder of such Notes shall be ~~accompanied by funds~~ entitled to an additional number of shares of Common Stock equal to the ~~amount of interest payable~~ Conversion Rate for the PIK Amount which would otherwise have been due to such converting Holder on the ~~Notes so converted; provided that no such payment shall be required~~ corresponding regular Interest Payment Date or Maturity Date, as applicable: (1) for conversions following the Regular Record Date immediately preceding the Maturity ~~Date;~~ Date; (2) if the ~~Issuer~~ Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the date on which the corresponding interest payment is made; (3) if the Issuer 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 date on which the corresponding interest payment is made; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date or any Redemption Date shall receive the full interest payment due on the Maturity Date or such Redemption Date, as applicable, regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name any shares of Common Stock delivered upon conversion is registered shall be deemed to be the holder of record of such shares as of the close of business on the relevant Conversion Date (in the case of Physical Settlement) or the last Trading Day of the relevant Observation Period (in the case of 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 as of the time immediately prior to the close of business on the Conversion Date. (j) The Issuer shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common 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 Issuer has elected (or is deemed to have elected) Combination Settlement, the full number of 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 shares remaining after such computation shall be paid in cash.following

Appears in 1 contract

Sources: Indenture (Accelerate Diagnostics, Inc)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the ~~Issuer~~ 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 Stock~~Class A Shares, together with cash, if applicable, in lieu of delivering any fractional share of ~~Common Stock~~ Class A Shares in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”) or a combination of cash and ~~shares of Common Stock~~Class A Shares, together with cash, if applicable, in lieu of delivering any fractional share of ~~Common Stock~~ Class A Shares in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~November 15~~August 1, ~~2025, and all conversions for which the relevant Conversion Date occurs after the Issuer’s issuance of~~ 2025 or during a single Redemption ~~Notice with respect to the Notes and prior to the related Redemption Date,~~ Period shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs ~~after the Issuer’s issuance of~~ during a Redemption ~~Notice with respect to the Notes but prior to the related Redemption Date~~ Period and any conversions for which the relevant Conversion Date occurs on or after ~~November 15~~August 1, 2025, the ~~Issuer~~ Company shall use the same Settlement Method for all conversions ~~with~~ on the same Conversion Date, but the ~~Issuer~~ 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,~~ If the Company elects a Settlement Method in respect of ~~any~~ a Conversion ~~Date~~Date (or in respect of conversions occurring on or after August 1, 2025), the ~~Issuer elects to~~ Company will deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion ~~Date~~Date (or in respect of conversions occurring on or after August 1, ~~the Issuer shall deliver such Settlement Notice in writing~~ 2025) to ~~the Holders with a copy to the Trustee and the Conversion Agent (if other than~~ converting Holders, through the Trustee) , no later than the close of business on the Trading Day immediately following the ~~relevant~~ related Conversion Date (~~or,~~ or in the case of any ~~conversions for which~~ conversion (i) during a Redemption Period as described in Article XVI, in the relevant ~~Conversion Date occurs~~ Notice of Redemption, (~~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~~ii) on or after ~~November 15~~August 1, 2025, no earlier than 15 Business Days prior to August 1, 2025 and no later than ~~November 15~~the close of business on the Business Day immediately preceding August 1, ~~2025~~2025 or (iii) for which the Company has elected Physical Settlement to apply in a Certain Distributions Notice, in such Certain Distributions Notice). . (iv) If the ~~Issuer~~ Company does not elect a Settlement Method prior to the deadline set forth in ~~the immediately preceding sentence~~clause (iii) above, the ~~Issuer~~ Company shall no longer have the right to elect Cash Settlement or ~~Physical~~ Combination Settlement ~~with respect to~~ for such conversion or during such period and the ~~Issuer~~ 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 ~~Issuer~~ 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. Notwithstanding the foregoing, the Company will be permitted to irrevocably elect Physical Settlement in any Certain Distributions Notice and any such election would be applicable to conversions with Conversion Dates that occur after delivery to the Holders of the Certain Distributions Notice until the Certain Distributions Conversion Period End Date. (ivv) The cash, ~~shares of Common Stock~~ Class A Shares or combination of cash and ~~shares of Common Stock~~ Class A Shares in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the ~~Issuer~~ Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the ~~Issuer~~ 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 Stock~~ Class A Shares equal to the Conversion ~~Rate in effect on the Conversion Date (and cash in lieu of fractional shares as provided herein)~~Rate; (B) if the ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the ~~Issuer~~ 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 40 20 consecutive Trading Days during the related Observation Period; and (C) if the ~~Issuer~~ Company elects ~~(or is deemed to have elected)~~ to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the ~~Issuer~~ 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 40 20 consecutive Trading Days during the related Observation Period. (vvi) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the ~~Issuer~~ 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 Stock~~Class A Shares, the ~~Issuer~~ 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 Stock~~Class A Shares. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to 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 any taxes payable as described in Section 14.02(d)~~ and, if required, pay all transfer or ~~Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures~~ similar taxes, if ~~such Holder wishes to exercise its conversion rights)~~ 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 ~~or by facsimile~~ 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~~ Class A Shares to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the ~~Issuer~~ 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 14.02(h) and any taxes payable as described in Section 14.02(d) or Section 14.02(e)~~Date. The Trustee (and if different, the Conversion Agent) shall notify the ~~Issuer~~ Company of any conversion pursuant to this Article 14 XIV 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~~ Purchase Notice to the ~~Issuer~~ Company in respect of such Notes and has not validly withdrawn such Fundamental Change ~~Repurchase~~ Purchase Notice in accordance with 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. (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 14.03(b) and Section 14.07(a), the ~~Issuer~~ 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 ~~Issuer~~ Company elects (or is deemed to have elected) Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer shall deliver the consideration due in respect of the Conversion Obligation on the Maturity Date)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~~ ; provided that, with respect to any ~~shares of Common Stock are due to converting Holders~~Conversion Date occurring (x) during a Redemption Period, the ~~Issuer shall issue~~ Company will settle any such conversion for which the Company elects Physical Settlement on the Redemption Date or ~~cause to be issued~~(y) on or after August 1, ~~and deliver to~~ 2025, the ~~Conversion Agent or to~~ Company will settle any such ~~Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through~~ conversion for which it elects Physical Settlement on the ~~Depositary for the full number of shares of Common Stock to which such Holder shall be entitled in satisfaction of the Issuer’s Conversion Obligation~~Maturity Date. (d) In case any Physical Note shall be surrendered for partial conversion, the ~~Issuer~~ Company shall ~~execute~~ execute, and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so ~~surrendered~~ surrendered, a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the ~~Issuer~~ Company, the Trustee or ~~Trustee~~the Security 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 ~~Issuer~~ Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any ~~shares of Common Stock~~ Class A Shares 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~~ certificate representing the ~~shares of Common Stock~~ 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~~ Holders in accordance with the immediately preceding sentence. (f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any ~~shares of Common Stock~~ Class A Shares issued upon the conversion of any Note as provided in this Article 14XIV. (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 ~~Issuer~~ 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes. The ~~Issuer~~Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and ~~shares of Common Stock~~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 shall 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 such interest 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 ~~Issuer~~ Company has specified a Fundamental Change Purchase Date that is after a Regular Record Date and on or prior to the Business Day immediately 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 ~~following the date on which~~ succeeding the corresponding ~~interest payment is made; (3) if the Issuer has specified a Fundamental Change Repurchase~~ Interest Payment Date ~~that is after a Regular Record Date and on or prior to the Business Day immediately following the date on which the corresponding interest payment is made;~~ or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date or any Redemption Date shall receive the full interest payment due on the Maturity Date or such Redemption Date, as applicable, regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name ~~any shares of Common Stock delivered~~ the Class A Shares shall be issuable upon conversion ~~is registered~~ shall ~~be deemed to be~~ become the ~~holder~~ Holder of record of such shares as of the close of business on the relevant Conversion Date (in if the ~~case of~~ Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (in if the ~~case of~~ Company elects 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 as of the time immediately prior to the close of business on the Conversion Date~~conversion. (j) The ~~Issuer~~ Company shall not issue any fractional share of ~~Common Stock~~ Class A Shares upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of ~~Common Stock~~ Class A Shares 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 ~~Issuer~~ Company has elected (or is deemed to have elected) Combination Settlement, the full number of 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~~ Period, and any fractional shares remaining after such computation shall be paid in cash. 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.

Appears in 1 contract

Sources: First Supplemental Indenture (Shopify Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the ~~Issuer~~ 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”), ~~shares of Common Stock,~~ ADSs together with cash, if applicable, in lieu of delivering any fractional ~~share of Common Stock~~ ADSs (“Fractional ADSs”) (in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”)) or a combination of cash and ~~shares of Common Stock~~ADSs, together with cash, if applicable, in lieu of delivering any fractional ~~share of Common Stock~~ ADS in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, subject to the Holder’s election to receive Ordinary Shares in lieu of such ADSs, as set forth in this Section 14.02. (i) All conversions for which the relevant Conversion Date occurs ~~on or after November 15, 2025, and all conversions for which the relevant Conversion Date occurs~~ after the ~~Issuer~~Company’s issuance of a Redemption Notice with respect to the Notes and prior to the close of business on the third Scheduled Trading Day prior to the related Redemption Date, ~~shall~~ as applicable, and all conversions for which the relevant Conversion Date occurs on or after the 25th Scheduled Trading Day immediately preceding the Maturity Date will be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs after the ~~Issuer~~Company’s issuance of a Redemption Notice with respect to the Notes but prior to the close of business on the third Scheduled Trading Day prior to the related Redemption ~~Date~~ Date, as applicable, and any conversions for which the relevant Conversion Date occurs on or after ~~November 15, 2025,~~ the ~~Issuer~~ 25th Scheduled Trading Day immediately preceding the Maturity Date the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the ~~Issuer~~ Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs after the date of issuance of a related Redemption Notice with respect to the Notes and prior to the close of business on the third Scheduled Trading Day prior to the related Redemption Date, in such Redemption Notice or on or after the ~~Issuer~~ 25th Scheduled Trading Day immediately preceding the Maturity Date, no later than the 25th Scheduled Trading Day immediately preceding the Maturity Date, 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~~Date (or such period, as the ~~Issuer shall deliver such Settlement Notice in writing~~ case may be) to ~~the Holders with a copy to~~ converting Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions 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 third Scheduled Trading Day prior to the related Redemption ~~Date,~~ Date in such Redemption Notice or ~~(y)~~ on or after ~~November 15, 2025~~the 25th Scheduled Trading Day immediately preceding the Maturity Date, no later than ~~November 15~~the 25th Scheduled Trading Day immediately preceding the Maturity Date) (in each case, ~~2025~~the “Settlement Method Election Deadline”). If the ~~Issuer~~ Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the ~~Issuer~~ Company shall no longer have the right to elect Cash Settlement or ~~Physical~~ Combination Settlement ~~with respect to such conversion~~ and the ~~Issuer~~ Company shall be deemed to have elected ~~Combination~~ Physical Settlement in respect of ~~its~~ the Company’s Conversion ~~Obligation~~Obligation (such settlement method, ~~and~~ the ~~Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000~~“Default Settlement Method” initially elected by the Company). 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 ~~Issuer~~ Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $US$1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $US$1,000 principal amount of Notes shall be deemed to be $US$1,000. (iv) The Company may, by written notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee), prior to the 25th Scheduled Trading Day immediately preceding the Maturity Date, change the Default Settlement Method or elect to irrevocably fix the Settlement Method to any Settlement Method that the Company is then permitted to elect, including Combination Settlement with a Specified Dollar Amount per US$1,000 principal amount of Notes of US$1,000 or with an ability to continue to set the Specified Dollar Amount per US$1,000 principal amount of Notes at or above any specific amount set forth in such election notice, that will apply to all Note conversions with a Conversion Date that is on or after the date the Company sends such notice. If the Company changes the Default Settlement Method or 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 US$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, notify Holders converting their Notes, the Trustee and the Conversion Agent (if other than the Trustee) in writing of such Specified Dollar Amount in respect of the relevant conversion or conversions no later than the relevant Settlement Method Election Deadline for such conversion or conversions, or, if the Company does not timely notify the Holders, the Trustee and the Conversion Agent (if other than the Trustee) of the Specified Dollar Amount, such Specified Dollar Amount shall be the specific amount set forth in the change or election notice or, if no specific amount was set forth in the change or election notice, such Specified Dollar Amount shall be deemed to be $1,000 per $1,000 principal amount of Notes. If the Company changes the Default Settlement Method or irrevocably fixes the Settlement Method, then the Company shall concurrently either post the Default Settlement Method or fixed Settlement Method, as applicable, on the Company’s website or disclose the same in a current report on Form 6-K (or any successor form) that is filed with the Commission. Notwithstanding the foregoing, no such change in the Default Settlement Method or irrevocable election will affect any Settlement Method theretofore elected (or deemed to be elected) with respect to any Conversion Date pursuant to this Section 14.02. For the avoidance of doubt, such change or election (as the case may be), if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.02(a). However, the Company may nonetheless choose to execute such an amendment at the Company’s option. (v) Subject to Section 14.03 and Section 14.04, the cash, ~~shares of Common Stock~~ ADSs or a combination of cash and ~~shares of Common Stock~~ ADSs, as applicable, in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the ~~Issuer~~ Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the ~~Issuer~~ Company shall deliver to the converting Holder in respect of each $US$1,000 principal amount of Notes being converted a number of ~~shares of Common Stock~~ ADSs equal to the Conversion Rate in effect on the Conversion Date ~~(and cash~~ for such conversion, subject to Holder’s election to receive Ordinary Shares in lieu of ~~fractional shares~~ such ADSs, all as ~~provided herein);~~set forth in this Section 14.02; (B) if the ~~Issuer~~ Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the ~~Issuer~~ 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 40 20 consecutive Trading Days during the related Observation ~~Period;~~ Period; and (C) if the ~~Issuer~~ Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the ~~Issuer~~ 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 40 20 consecutive Trading Days during the related Observation Period. (vvi) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the ~~Issuer~~ 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 Stock~~ADS, the ~~Issuer~~ 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 Stock~~ADSs. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such ~~determination~~determination or the distribution of such cash payable in lieu of Fractional ADSs. (bvii) ~~Subject~~ When converting the Notes, the Holders may elect to ~~Section 14.02(e)~~receive Ordinary Shares listed on the Hong Kong Stock Exchange in lieu of any ADSs deliverable upon conversion by specifying in the relevant Notice of Conversion such election, ~~before~~ provided that such election shall apply to all (but not part) of the ADSs deliverable upon conversion and Holders make the Non-affiliate Representation in the Notice of Conversion. If a Holder elects to receive Ordinary Shares in lieu of any ~~Holder~~ ADSs deliverable upon conversion, and the Company elects to settle the relevant Conversion Obligation by Physical Settlement or Combination Settlement, the Company shall register in the Hong Kong Share Register the Person or Persons designated in the Notice of ~~a Note shall be entitled~~ Conversion as holder of such number of Ordinary Shares equal to ~~convert a Note as set forth above, such Holder shall~~ (i) in the case of ~~a Global Note~~Physical Settlement, ~~comply with~~ the ~~procedures~~ number of ADSs deliverable upon conversion as described above under the “Settlement Amounts” in Section 14.02(a)(v) (without taking into account any fractional ADS) multiplied by the number of Ordinary Shares then represented by one ADS immediately after the close of business as of the ~~Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment~~ relevant Conversion Date ~~to which such Holder is not entitled as set forth in Section 14.02(h) and any taxes payable as described in Section 14.02(d)~~ or ~~Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) and~~ (ii) in the case of a ~~Physical Note (1) complete~~Combination Settlement, ~~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~~ for each of the ~~Conversion Agent or by facsimile and state in writing therein~~ 20 consecutive Trading Days during the ~~principal amount~~ related Observation Period, the number 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~~ ADSs deliverable upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Issuer 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 14.02(h) and any taxes payable conversion as described in ~~Section 14.02(d~~the definition of “Daily Settlement Amount” (without taking into account any fractional ADS) or Section 14.02(e). The Trustee (and if different, the Conversion Agent) shall notify the Issuer of any conversion pursuant to this 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 Issuer in respect of such ~~Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time~~ Trading Day multiplied by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Issuer 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 Issuer elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer 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 shares of Common Stock are due to converting Holders, the Issuer shall issue or cause to be issued, and deliver to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common Stock to which such Holder shall be entitled in satisfaction of the Issuer’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Issuer 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 Ordinary Shares then represented by the converting Holder but, if required by the Issuer 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 Issuer shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common 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 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 one ADS immediately preceding sentence. (f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Issuer 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes. The Issuer’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common 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 shall receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Issuer has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the date on which the corresponding interest payment is made; (3) if the Issuer 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 date on which the corresponding interest payment is made; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date or any Redemption Date shall receive the full interest payment due on the Maturity Date or such Redemption Date, as applicable, regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name any shares of Common Stock delivered upon conversion is registered shall be deemed to be the holder of record of such shares as of the close of business on the relevant Conversion ~~Date (in~~ Date, rounded down to the ~~case of Physical Settlement) or the last Trading Day of the relevant Observation Period (in the case of Combination Settlement), as the case may be~~nearest whole number. ~~Upon a conversion of Notes, such Person shall no longer be~~ If a Holder ~~of such Notes surrendered for conversion~~ is unable to make the Non-affiliate Representation as of the ~~time immediately~~ Conversion Date, such Holder may not elect to receive Ordinary Shares in lieu of any ADSs deliverable upon Conversion. If the Holder has requested in the Notice of Conversion, to the extent permitted under applicable law and the rules and procedures of CCASS, the Company shall take all necessary action to enable the Ordinary Shares, if any, deliverable to such holder, in settlement upon conversion to be delivered to such Holder’s designated Hong Kong stock account in CCASS for so long as the Ordinary Shares are listed on the Hong Kong Stock Exchange; provided that, if such Holder elects in the Notice of Conversion to receive Ordinary Shares outside of CCASS or if the restrictive legend on the Notes has not been removed prior to the ~~close of business on the~~ Conversion Date, the Company shall make share certificate or certificates representing such number of Ordinary Shares available for collection at the office of the Hong Kong Share Registrar or, if so requested in the relevant Notice of Conversion, cause the Hong Kong Share Registrar to mail (at the risk, and, if sent at the Holder’s request otherwise than by ordinary mail, at the expense, of the Person to whom such certificate or certificates are sent) such certificate or certificates to the Person and at the place specified in the Notice of Conversion. (jviii) If Holder wishes to receive Ordinary Shares listed for trading on the Hong Kong Stock Exchange and Holder has received, upon conversion of the Notes, ADSs that are not subject to certain transfer restrictions as set forth in Section 2.05(d) and are fungible with the ADSs, Holder may surrender such ADSs received upon conversion for cancellation and withdraw the underlying Ordinary Shares listed for trading on the Hong Kong Stock Exchange pursuant to the Deposit Agreement, the Restricted ADS Letter Agreement and/or the Note Conversion Letter Agreement, as applicable. The ~~Issuer~~ Company shall take reasonable best efforts to procure that the cancellation fee (at of the date of this Indenture, US$0.05 per ADS) payable to the ADS Depositary in respect of such withdrawal will not ~~issue any fractional share~~ apply; provided that the withdrawal request in submitted no later than the third Business Day after delivery of ~~Common~~ the ADS by the Company upon conversion. For the avoidance of doubt, a Holder may only receive Ordinary Shares listed for trading on the Hong Kong Stock Exchange upon surrender and cancellation of ADSs (x) that have been issued without certain transfer restrictions as set forth in Section 2.05(d) after the Resale Restriction Termination Date or (y) after certain transfer restrictions as set forth in Section 2.05(d) have been removed from Restricted ADSs issued upon conversion of the Notes. (ix) Any ADSs deliverable upon conversion of the Notes and ~~shall instead pay cash~~ any Ordinary Shares represented thereby will, prior to the Resale Restriction Termination Date, subject to certain transfer restrictions as set forth in Section 2.05(d). Any Ordinary shares deliverable in lieu of ~~delivering~~ any ~~fractional share~~ ADSs will be, prior to the Resale Restriction Termination Date, subject to certain transfer restrictions as set forth in Section 2.05(d) and as imposed by the Hong Kong Share Registrar, and will not be able to be deposited into CCASS until such restrictions are removed. After removal of ~~Common Stock issuable~~ such restrictions on transfer and resale, any Ordinary Shares deliverable upon conversion ~~based~~ of the Notes, if any, will be fully fungible with the Ordinary Shares listed on the ~~Daily VWAP for~~ Hong Kong Stock Exchange. The Company further covenants that it will, at its cost, obtain approval to list (i) the ~~relevant Conversion Date~~ maximum number of ADSs deliverable upon conversion of the Notes (assuming Physical Settlement applies to each conversion) on The New York Stock Exchange and (ii) the Ordinary Shares representing by such maximum number of ADSs on the Hong Kong Stock Exchange. The Company shall register such number of the Ordinary Shares as is listed on the Hong Kong Stock Exchange pursuant to this paragraph on the Hong Kong Share Register in the ~~case~~ Person or Persons designated in the Notice of ~~Physical Settlement) or based~~ Conversion as the holder of the Ordinary Shares in order to facilitate their listing and trading on the ~~Daily VWAP for~~ Hong Kong Stock Exchange. (x) Pursuant to, and subject to, the ~~last Trading Day~~ terms of the ~~relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Issuer has elected (or is deemed to have elected) Combination Settlement~~Deposit Agreement, the ~~full number~~ Restricted ADS Letter Agreement and the Note Conversion Letter Agreement, the ADS Depositary will accept the surrender of ~~shares that shall be~~ any Restricted ADSs issued upon conversion ~~thereof shall be computed~~ of the Notes for the purpose of Restricted ADS cancellation and withdrawal of the Ordinary Shares represented thereby subject to receipt by the ADS Depositary of (x) applicable Withdrawal Certification in the form set out in the Note Conversion Letter Agreement or the Restricted ADS Letter Agreement, as applicable, and (y) the applicable fees for cancellation of Restricted ADSs and withdrawal of the Ordinary Shares. Restricted ADS cancellations are permitted, but only for withdrawal of the Ordinary Shares registered on the ~~basis~~ Principal Share Register and are subject to Withdrawal Certification requirements set out in the Note Conversion Letter Agreement or the Restricted ADS Letter Agreement, as applicable. Upon cancellation of Restricted ADSs, the ~~aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.~~ADS Depositary will

Appears in 1 contract

Sources: Indenture (Alibaba Group Holding LTD)

Appears in 1 contract

Sources: Indenture (PROS Holdings, Inc.)

Appears in 1 contract

Sources: Indenture (PROS Holdings, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~14.02~~13.02, Section ~~14.03(b~~13.03(b) and Section ~~14.07(a~~13.07(a), upon conversion of any Note, the ~~Issuer~~ 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 Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section ~~14.02~~ 13.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section ~~14.02~~ 13.02 (“Combination Settlement”), at its election, as set forth in this Section ~~14.02~~13.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~November~~ December 15, ~~2025, and all conversions for which the relevant Conversion Date occurs after the Issuer’s issuance of~~ 2024 or during a Redemption ~~Notice with respect to the Notes and prior to the related Redemption Date,~~ Period shall be settled using the same Settlement Method. (ii) Except for any conversions ~~for which~~ described in the relevant Conversion Date occurs after the Issuer’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 November 15, 2025immediately preceding clause (i), the ~~Issuer~~ Company shall use the same Settlement Method for all conversions ~~with~~ occurring on the same Conversion Date, but the ~~Issuer~~ 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~~Date (or the period described in clause (i) above), as the case may be), the ~~Issuer~~ Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion ~~Date~~Date (or such period, as the case may be), the ~~Issuer~~ Company shall deliver such Settlement Notice ~~in writing~~ to ~~the Holders with a copy to~~ converting Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs (xi) ~~after the date of issuance of~~ during a Redemption ~~Notice with respect to the Notes and prior to~~ Period, in the related ~~Redemption Date, in such~~ Redemption Notice or (yii) on or after ~~November~~ December 15, ~~2025~~2024, no later than ~~November~~ the close of business on Scheduled Trading Day immediately preceding March 15, ~~2025~~2024). If the ~~Issuer~~ Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the ~~Issuer~~ Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to such conversion or during such period and the ~~Issuer~~ 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 ~~Issuer~~ 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. Notwithstanding the foregoing, any conversion of Sponsor Notes shall be subject to Section 13.02(a)(v). (iv) The cash, shares of Common Stock or combination of cash and shares of Common Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) Subject to clause (D) below, if the ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the ~~Issuer~~ 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 Stock equal to the Conversion Rate in effect on the Conversion ~~Date (and cash in lieu of fractional shares as provided herein)~~Date; (B) Subject to clause (D) below, if the ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the ~~Issuer~~ 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 40 30 consecutive Trading Days during the related Observation Period~~; and~~; (C) Subject to clause (D) below, if the ~~Issuer~~ Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the ~~Issuer~~ 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 40 30 consecutive Trading Days during the related Observation Period; and (D) to the extent a Holder of a Sponsor Note submits a Notice of Conversion with respect to a Sponsor Note following a Redemption Notice and prior to the close of business on the Scheduled Trading Day immediately preceding the related Redemption Date, the Company shall pay the converting Holder in respect of each $1,000 principal amount of Notes being converted, the Settlement Amount due calculated by using the Settlement Method set forth in the Sponsor Election Notice. (v) Notwithstanding anything herein to the contrary, (1) subject to clause (2), the Company hereby initially elects to satisfy its Conversion Obligation with respect to any conversion of Sponsor Notes by Combination Settlement with a Specified Dollar Amount of $1,000 per $1,000 principal amount of Notes and (2) following a Redemption Notice and prior to the close of business on the Scheduled Trading Day immediately preceding the related Redemption Date, a Holder of a Sponsor Notes may only convert such Notes if such Holder delivers, concurrently with such conversion, a written notice to the Company, specifying the Settlement Method (and, in the case of Combination Settlement, the Specified Dollar Amount) that shall apply (such notice, a “Sponsor Election Notice”) for any conversion of such Holder’s Notes following the Redemption Notice and prior to the close of business on the Scheduled Trading Day immediately preceding the Redemption Date. The Company shall, promptly following receipt of a Sponsor Election Notice, provide a copy to the Trustee and the Conversion Agent (if other than the Trustee). The Company may change its Settlement Method election (and, in the case of Combination Settlement, the Specified Dollar Amount) with respect to any conversion of Sponsor Notes (other than a conversion following a Redemption Notice and prior to the related Redemption Date) by delivering a notice that specifies the newly elected Settlement Method and, in the case of Combination Settlement, the applicable Specified Dollar Amount (the “Sponsor Settlement Notice”) to the Holders of the Sponsor Notes (with a copy to the Trustee and the Conversion Agent (if other than the Trustee), and such newly elected Settlement Method (and, in the case of Combination Settlement, the Specified Dollar Amount) shall be effective no earlier than ten (10) Trading Days after the date on which such Sponsor Settlement Notice was received by the Holder. In the event any Holder(s) of Sponsor Notes exercises its right to convert all or any portion of such Sponsor Notes, (A) the relevant Observation Period for purposes of determining the Daily Settlement Amount, in the case of Combination Settlement, and Daily Conversion Values, in the case of Cash Settlement, with respect to such Sponsor Notes shall be the 30 consecutive Trading Day period beginning on, and including, the 31st Trading Day immediately preceding the applicable Conversion Date and ending on the Trading Day immediately preceding such Conversion Date and (B) the Company shall promptly (x) determine the Daily Settlement Amount 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 Stock and (y) notify the Trustee, the Conversion Agent (if other than the Trustee) and such Holder of Sponsor Notes being so converted of the Daily Settlement Amount 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 Stock. (vi) With respect to Notes that are not Sponsor Notes, the Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the ~~Issuer~~ 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, with respect to Notes that are not Sponsor Notes and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the ~~Issuer~~ 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 Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (vii) Subject to Section 13.02(a)(v), at any time prior to December 15, 2024, the Company may irrevocably elect Cash Settlement to satisfy its Conversion Obligation in respect of Notes to be converted after the date of such election, or irrevocably elect Combination Settlement and a Specified Dollar Amount (which amount shall be at least $1,000 per $1,000 principal amount of Notes) to satisfy its Conversion Obligation in respect of Notes to be converted after the date of such election. Upon making any election pursuant to this Section 13.02(a)(vii), the Company shall promptly (A) use its reasonable efforts to post information relating to such election on its website or otherwise publicly disclose such information, and (B) give written notice of such election to the Holders of the Notes. (b) Subject to Section ~~14.02(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 14.02(h) and any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights13.02(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 ~~or by facsimile~~ 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 Obligation to be registered, (2) surrender such Notes, duly endorsed to the ~~Issuer~~ 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 ~~14.02(h) and any taxes payable as described in Section 14.02(d) or Section 14.02(e~~13.02(h). The Trustee (~~and~~ and, if different, the Conversion Agent) shall notify the ~~Issuer~~ Company of any conversion pursuant to this Article 14 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 ~~Issuer~~ Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~15.03~~14.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section ~~14.03(b~~13.03(b) and Section ~~14.07(a~~13.07(a), in the ~~Issuer~~ case of any conversion of Notes other than Sponsor Notes, 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 ~~Issuer~~ Company elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer shall deliver the consideration due in respect of the Conversion Obligation on the Maturity Date)Settlement, or on the second Business Day immediately following the last Trading Day of the relevant Observation Period, in the case of Cash Settlement or Combination Settlement. In the case of any conversion of Sponsor Notes, 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 unless otherwise specified in the written notice referred to in the proviso below; provided, however, that (i) to the extent all or a portion of the Conversion Obligation is paid in cash, such cash shall not be due until the earlier of (A) the 30th Business Day immediately following the relevant Conversion Date and (B) the Maturity Date, and (ii) to the extent all or a portion of the Conversion Obligation is to be paid in shares of Common Stock, such shares shall be delivered on the day specified in a written notice from the beneficial owner(s) of the Sponsor Notes being converted that is delivered to the Company on or prior to the Business Day immediately following the relevant Conversion Date, which delivery date (in respect of such shares of Common Stock) shall be the second Business Day immediately following the relevant Conversion Date (it being understood that if no such notice is delivered to the Company, then the Company shall deliver such shares on the second Business Day immediately following the relevant Conversion Date). Such written notice shall include a certification therein that the beneficial owners delivering such written notice are holders that hold beneficial interests in the Sponsor Notes subject to conversion. The Company shall promptly notify the Trustee and the Conversion Agent (if other ~~Settlement Method~~than the Trustee) in writing of the Conversion Date for such Sponsor Notes. If any shares of Common Stock are due to converting Holders, the ~~Issuer~~ Company shall issue or cause to be issued, and deliver to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common Stock to which such Holder shall be entitled in satisfaction of the ~~Issuer~~Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the ~~Issuer~~ Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the ~~Issuer~~ 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 ~~Issuer~~ Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common 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 or refuse to instruct the stock transfer agent to deliver the certificates representing the shares of Common 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 ~~14.04~~13.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Issuer 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes. The Issuer’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common 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 shall receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Issuer has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the date on which the corresponding interest payment is made; (3) if the Issuer 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 date on which the corresponding interest payment is made; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date or any Redemption Date shall receive the full interest payment due on the Maturity Date or such Redemption Date, as applicable, regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name any shares of Common Stock delivered upon conversion is registered shall be deemed to be the holder of record of such shares as of the close of business on the relevant Conversion Date (in the case of Physical Settlement) or the last Trading Day of the relevant Observation Period (in the case of 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 as of the time immediately prior to the close of business on the Conversion Date. (j) The Issuer shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common 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 Issuer has elected (or is deemed to have elected) Combination Settlement, the full number of 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 shares remaining after such computation shall be paid in cash.dividend

Appears in 1 contract

Sources: Indenture (Twitter, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~14.02~~9.02, Section ~~14.03(b~~9.03(b) and Section ~~14.07(a~~9.07(a), upon conversion of any Note, the Issuer 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 Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section ~~14.02~~ 9.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section ~~14.02~~ 9.02 (“Combination Settlement”), at its election, as set forth in this Section ~~14.02~~9.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~November 15~~April 1, ~~2025, and all conversions for which the relevant Conversion Date occurs after the Issuer’s issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date,~~ 2023 shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs ~~after the Issuer’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 ~~November 15~~April 1, ~~2025~~2023, the Issuer shall use the same Settlement Method for all conversions with the same Conversion Date, but the Issuer 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~~Date (or the period described in the third immediately succeeding set of parentheses, as the case may be), the Issuer elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion ~~Date~~Date (or such period, as the case may be), the ~~Issuer~~ Issuer, through the Conversion Agent, shall deliver such Settlement Notice ~~in writing~~ to ~~the~~ converting Holders ~~with a copy to the Trustee and the Conversion Agent (if other than the Trustee)~~ no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of 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 ~~November 15~~April 1, ~~2025~~2023, no later than ~~November 15~~April 1, ~~2025~~2023). If the Issuer does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Issuer shall no longer have the right to elect Cash Settlement or Physical Settlement ~~with respect to such conversion~~ and the Issuer 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 Issuer 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. (iv) The cash, shares of Common Stock or combination of cash and shares of Common Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Issuer elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Issuer shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion ~~Date (and cash in lieu of fractional shares as provided herein)~~Date; (B) if the Issuer elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Issuer 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 40 30 consecutive Trading Days during the related Observation Period; and (C) if the Issuer elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Issuer 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 40 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 Issuer 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 Stock, the Issuer 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 Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~14.02(e~~9.02(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 any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights9.02(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 ~~or by facsimile~~ 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 Obligation to be registered, (2) surrender such Notes, duly endorsed to the Issuer 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 ~~14.02(h) and any taxes payable as described in Section 14.02(d) or Section 14.02(e~~9.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Issuer of any conversion pursuant to this Article 14 9 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 Issuer in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~15.03~~10.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section ~~14.03(b~~9.03(b) and Section ~~14.07(a~~9.07(a), the Issuer 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 Issuer elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer shall deliver the consideration due in respect of the Conversion Obligation on the Maturity Date)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 Stock are due to a converting ~~Holders~~Holder, the Issuer 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 Stock to which such Holder shall be ~~entitled~~ entitled, in book-entry format through the Depositary, in satisfaction of the Issuer’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Issuer 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 Issuer 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 Issuer shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common 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 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 ~~14.04~~9.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 149. (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 Issuer 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes~~. The Issuer’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common 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 ~~shall~~ will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Issuer has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the date on which the corresponding interest payment is made; (3) if the Issuer 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 ~~date on which the~~ corresponding ~~interest payment is made~~Interest Payment Date; or (43) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date ~~or any Redemption Date~~ shall receive the full interest payment due on the Maturity Date ~~or such Redemption Date, as applicable,~~ in cash regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name ~~any~~ the shares of Common Stock ~~delivered~~ shall be issuable upon conversion ~~is registered~~ shall be ~~deemed to be the holder~~ treated as a stockholder of record ~~of such shares~~ as of the close of business on the relevant Conversion Date (in if the ~~case of~~ Issuer elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (in if the ~~case of~~ Issuer elects 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 as of the time immediately prior to the close of business on the Conversion Date~~conversion. (j) The Issuer shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common 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 Issuer has elected ~~(or is deemed to have elected)~~ Combination Settlement, the full number of 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 shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Sources: First Supplemental Indenture (Intrexon Corp)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the ~~Issuer~~ 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”), ~~shares of Common Stock,~~ ADSs together with cash, if applicable, in lieu of delivering any fractional ~~share of Common Stock~~ ADSs (“Fractional ADSs”) (in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”)) or a combination of cash and ~~shares of Common Stock~~ADSs, together with cash, if applicable, in lieu of delivering any fractional ~~share of Common Stock~~ ADS in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, subject to the Holder’s election to receive Ordinary Shares in lieu of such ADSs, as set forth in this Section 14.02.. (i) All conversions for which the relevant Conversion Date occurs ~~on or after November 15, 2025, and all conversions for which the relevant Conversion Date occurs~~ after the ~~Issuer~~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 prior to the related Redemption Date, ~~shall~~ as applicable, and all conversions for which the relevant Conversion Date occurs on or after the 50th Scheduled Trading Day immediately preceding the stated Maturity Date will be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs after the ~~Issuer~~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 prior to the related Redemption ~~Date~~ Date, as applicable, and any conversions for which the relevant Conversion Date occurs on or after ~~November 15, 2025,~~ the ~~Issuer~~ 50th Scheduled Trading Day immediately preceding the stated Maturity Date the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the ~~Issuer~~ Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs after the date of issuance of a Tax Redemption Notice or Cleanup Redemption Notice with respect to the Notes and prior to the close of business on the second Scheduled Trading Day prior to the related Tax Redemption Date or Cleanup Redemption Date, as applicable, in such Redemption Notice or on or after the ~~Issuer~~ 50th Scheduled Trading Day immediately preceding the Maturity Date, no later than the 50th Scheduled Trading Day immediately preceding the Maturity Date, 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~~Date (or such period, as the ~~Issuer shall deliver such Settlement Notice in writing~~ case may be) to ~~the Holders with a copy to~~ converting 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 Tax Redemption Notice or Cleanup Redemption Notice, as applicable, with respect to the Notes and prior to the close of business on the second Scheduled Trading Day prior to the related Tax Redemption ~~Date,~~ Date or Cleanup Redemption Date in such Redemption Notice or ~~(y)~~ on or after ~~November 15, 2025~~the 50th Scheduled Trading Day immediately preceding the Maturity Date, no later than ~~November 15~~the 50th Scheduled Trading Day immediately preceding the Maturity Date) (in each case, ~~2025~~the “Settlement Method Election Deadline”). If the ~~Issuer~~ Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the ~~Issuer~~ Company shall no longer have the right to elect Cash Settlement or Physical Settlement ~~with respect to such conversion~~ and the ~~Issuer~~ Company shall be deemed to have elected Combination Settlement with a Specified Dollar Amount of US$1,000 per US$1,000 principal amount of Notes in respect of its Conversion ~~Obligation~~Obligation (such settlement method, ~~and~~ the ~~Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000~~“Default Settlement Method” initially elected by the Company). 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 ~~Issuer~~ Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $US$1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per US$1,000 principal amount of Notes shall be deemed to be US$1,000. (iv) The Company may, by written notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee), prior to the 50th Scheduled Trading Day immediately preceding the Maturity Date, change the Default Settlement Method or elect to irrevocably fix the Settlement Method to any Settlement Method that the Company is then permitted to elect, including Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 or with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above any specific amount set forth in such election notice, that will apply to all Note conversions with a Conversion Date that is on or after the date the Company sends such notice. If the Company changes the Default Settlement Method or 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, notify Holders converting their Notes, the Trustee and the Conversion Agent (if other than the Trustee) in writing of such Specified Dollar Amount in respect of the relevant conversion or conversions no later than the relevant Settlement Method Election Deadline for such conversion or conversions, or, if the Company does not timely notify the Holders, the Trustee and the Conversion Agent of the Specified Dollar Amount, such Specified Dollar Amount shall be the specific amount set forth in the change or election notice or, if no specific amount was set forth in the change or election notice, such Specified Dollar Amount shall be deemed to be $~~1,000.~~1,000 per $1,000 principal amount of Notes. If the Company changes the Default Settlement Method or irrevocably fixes the Settlement Method, then the Company shall concurrently either post the Default Settlement Method or fixed Settlement Method, as applicable, on the Company’s website or disclose the same in a current report on Form 6-K (or any successor form) that is filed with the Commission. Notwithstanding the foregoing, no such change in the Default Settlement Method or irrevocable election will affect any Settlement Method theretofore elected (or deemed to be elected) with respect to any Conversion Date pursuant to this Section 14.02. For the avoidance of doubt, such change or election (as the case may be), if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.02(a). However, the Company may nonetheless choose to execute such an amendment at the Company’s option. (ivv) ~~The~~ Subject to Section 14.03 and Section 14.04, the cash, ~~shares of Common Stock~~ ADSs or a combination of cash and ~~shares of Common Stock~~ ADSs, as applicable, in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows:: (A) if the ~~Issuer~~ Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the ~~Issuer~~ Company shall deliver to the converting Holder in respect of each $US$1,000 principal amount of Notes being converted a number of ~~shares of Common Stock~~ ADSs equal to the Conversion Rate in effect on the Conversion Date ~~(and cash in lieu of fractional shares as provided herein);~~for such conversion; (B) if the ~~Issuer~~ Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the ~~Issuer~~ 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 40 consecutive Trading Days during the related Observation Period; ~~and~~and (C) if the ~~Issuer~~ Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the ~~Issuer~~ 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 40 consecutive Trading Days during the related Observation Period. (vvi) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the ~~Issuer~~ 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 Stock~~ADS, the ~~Issuer~~ Company shall notify the ~~Trustee and the Conversion Agent (if other than the Trustee)~~ ADS Depositary 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 Stock~~ADSs. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such ~~determination.~~determination or the distribution of such cash payable in lieu of Fractional ADSs. (bvii) ~~Subject~~ The Holders may elect to ~~Section 14.02(e)~~receive Ordinary Shares in lieu of any ADSs deliverable upon conversion by specifying in the relevant Notice of Conversion such election, ~~before~~ provided that such election shall apply to all (but not part) of the ADSs deliverable upon conversion. If a Holder elects to receive Ordinary Shares in lieu of any ~~Holder~~ ADSs deliverable upon conversion, and the Company elects to settle the relevant Conversion Obligation by Physical Settlement or Combination Settlement, the Company shall register in the Hong Kong Share Register the Person or Persons designated in the Notice of ~~a Note shall be entitled~~ Conversion as holder of such number of Ordinary Shares equal to ~~convert a Note as set forth above, such Holder shall~~ (i) in the case of ~~a Global Note~~Physical Settlement, ~~comply with~~ the ~~procedures~~ number of ADSs deliverable upon conversion as described above under the “Settlement Amounts” in Section 14.02(a)(v) (without taking into account any fractional ADS) multiplied by the number of Ordinary Shares then represented by one ADS immediately after the close of business as of the ~~Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment~~ relevant Conversion Date ~~to which such Holder is not entitled as set forth in Section 14.02(h) and any taxes payable as described in Section 14.02(d)~~ or ~~Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) and~~ (ii) in the case of a ~~Physical Note~~ Combination Settlement, for each of the 40 consecutive Trading Days during the related Observation Period, the number of ADSs deliverable upon conversion as described in the definition of “Daily Settlement Amount” (1without taking into account any fractional ADS) ~~complete~~in respect of such Trading Day multiplied by the number of Ordinary Shares then represented by one ADS as of the same time as the applicable Conversion Rate for such Trading Day. If the Holder has requested in the Notice of Conversion, ~~manually sign~~ to the extent permitted under applicable law and ~~deliver an irrevocable notice~~ the rules and procedures of CCASS, the Company shall take all necessary action to enable the Ordinary Shares to be delivered to such Holder’s designated Hong Kong stock account in CCASS for so long as the Ordinary Shares are listed on the Hong Kong Stock Exchange; provided that, if such Holder elects in the Notice of Conversion to receive Ordinary Shares outside of CCASS or if the restrictive legend on the Notes has not been removed prior to the Conversion ~~Agent as set forth in~~ Date, the ~~Form~~ Company shall make share certificate or certificates representing such number of ~~Notice of Conversion (or a facsimile thereof) (a “Notice of Conversion”)~~ Ordinary Shares available for collection at the office of the ~~Conversion Agent or~~ Hong Kong Share Registrar or, if so requested in the relevant Notice of Conversion, cause the Hong Kong Share Registrar to mail (at the risk, and, if sent at the Holder’s request otherwise than by ~~facsimile and state in writing therein~~ ordinary mail, at the ~~principal amount~~ expense, of ~~Notes~~ the Person to ~~be converted and the name or names (with addresses) in which~~ whom such ~~Holder wishes the~~ certificate or certificates ~~for any shares~~ are sent) such certificate or certificates to the Person and at the place specified in the Notice of ~~Common Stock~~ Conversion. If a Holder fails to ~~be delivered upon settlement of~~ elect in the Conversion ~~Obligation~~ Notice to ~~be registered~~receive Ordinary Shares in lieu of any ADSs deliverable upon conversion, (2) surrender such Notes, duly endorsed to the Issuer 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 will not ~~entitled as set forth in Section 14.02(h) and any taxes payable as described in Section 14.02(d) or Section 14.02(e). The Trustee (and if different,~~ be able to subsequently receive the ~~Conversion Agent) shall notify~~ Ordinary Shares represented by such ADSs by withdrawing such Ordinary Shares represented thereby from the Issuer of any conversion pursuant to this 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 Issuer in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with 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. (c) A Note shall be deemed to have been converted immediately ADS Depositary 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 14.03(b) and Section 14.07(a), the Issuer 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 Issuer elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer 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 shares of Common Stock are due to converting Holders, the Issuer shall issue or cause to be issued, and deliver to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common Stock to which such Holder shall be entitled in satisfaction of the Issuer’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Issuer 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 Issuer 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 Issuer shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common 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 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 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Issuer 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes. The Issuer’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common 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 shall receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Issuer has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the date on which the corresponding interest payment is made; (3) if the Issuer 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 date on which the corresponding interest payment is made; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date or any Redemption Date shall receive the full interest payment due on the Maturity Date or such Redemption Date, as applicable, regardless of whether their Notes have been converted following such Regular Record Resale Restriction Termination Date. (iviii) The Person in whose name any shares of Common Stock delivered upon conversion is registered shall be deemed to be the holder of record of such shares as of the close of business on the relevant Conversion Date (in the case of Physical Settlement) or the last Trading Day of the relevant Observation Period (in the case of 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 as of the time immediately prior to the close of business on the Conversion Date. (j) The Issuer shall not issue any fractional share of Common Stock Any ADSs deliverable upon conversion of the Notes and ~~shall instead pay cash~~ any Ordinary Shares represented thereby will, prior to the Resale Restriction Termination Date, subject to certain transfer restrictions as set forth in Section 2.05(d). Any Ordinary shares deliverable in lieu of ~~delivering~~ any ~~fractional share~~ ADSs will be, prior to the Resale Restriction Termination Date, subject to certain transfer restrictions as set forth in Section 2.05(d) and as imposed by the Hong Kong Share Registrar, and will not be able to be deposited into CCASS until such restrictions are removed. After removal of ~~Common Stock issuable~~ such restrictions on transfer and resale, any Ordinary Shares deliverable upon conversion ~~based~~ of the Notes, if any, will be fully fungible with the Ordinary Shares listed on the ~~Daily VWAP for~~ Hong Kong Stock Exchange. The Company further covenants that it will obtain approval to list, subject to official notice of issuance upon conversion of the ~~relevant Conversion Date (~~Notes, such Ordinary Shares on the Hong Kong Stock Exchange and register in the ~~case~~ Hong Kong Share Register in the Person or Persons designated in the Notice of ~~Physical Settlement) or based~~ Conversion as the holder of the Ordinary Shares in order to facilitate their listing and trading on the ~~Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement)~~Hong Kong Stock Exchange. For each Note surrendered for conversion, if the Issuer has elected (or is deemed to have elected) Combination Settlement, the full number of 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 shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Sources: Indenture (ZTO Express (Cayman) Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, if the ~~Issuer~~ Company has not received Stockholder Approval prior to (x) in respect of a conversion of a Note for which the relevant Conversion Date occurs prior to the Final Period Date, the relevant Conversion Date and (y) in respect of a conversion of a Note for which the relevant Conversion Date occurs on or after the Final Period Date, the Final Period Date (the date set forth in clause (x) or clause (y), as the case may be, the “Stockholder Approval Deadline”), the Company shall satisfy its Conversion Obligation in respect of such Note (in the case of clause (x)) or in respect of all Notes for which the relevant Conversion Date occurs on or after the Final Period Date (in the case of clause (y)) by Stock Settlement. Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, if the Company has received Stockholder Approval prior to the relevant Stockholder Approval Deadline, 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 Stock, together with cash, if applicable, in lieu of ~~delivering~~ any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“~~Physical~~ Stock Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of ~~delivering~~ any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02. If the Company receives Stockholder Approval on any day, it shall so notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) prior to the close of business on the immediately following Business Day. (i) All conversions for which the relevant Conversion Date occurs on or after ~~November 15, 2025, and all conversions for which~~ the ~~relevant Conversion~~ Final Period Date ~~occurs after the Issuer’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) All conversions occurring on a given Conversion Date that occurs prior to the Final Period Date shall be settled using the same Settlement Method. (iii) Except for any conversions for which the relevant Conversion Date occurs after the Issuer’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 occurring on or after ~~November 15, 2025~~the Final Period Date, the ~~Issuer shall use the same Settlement Method for all conversions with the same Conversion Date, but the Issuer~~ Company shall not have any obligation to use the same Settlement Method with respect to conversions ~~with~~ that occur on different Conversion ~~Dates~~Dates (unless the Company has not received Stockholder Approval prior to the relevant Stockholder Approval deadline, in which case the Company shall be required to settle the relevant conversion by Stock Settlement). (~~iii~~iv) IfFollowing the Company’s receipt of Stockholder Approval, if, in respect of any Conversion Date occurring prior to the Final Period Date, the ~~Issuer~~ Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date, the ~~Issuer~~ Company, through the Trustee, shall deliver such Settlement Notice ~~in writing~~ to ~~the~~ 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 Redemption Notice with respect to the Notes and prior to the related Redemption Date, in such Redemption Notice or (y)~~ occurring on or after ~~November 15, 2025~~the Final Period Date, no later than ~~November 15, 2025~~the Final Period Date). If (a) the ~~Issuer~~ Company has received Stockholder Approval prior to the relevant Stockholder Approval Deadline and (b) the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the ~~Issuer~~ Company shall no longer have the right to elect Cash Settlement or ~~Physical~~ Stock Settlement ~~with respect to such conversion~~ and the ~~Issuer~~ Company shall be deemed to have elected Combination Settlement in respect of its Conversion ~~Obligation, and the~~ Obligation with a 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~~ Amount. If, in respect of ~~Notes. If~~ a conversion following the ~~Issuer~~ Company’s receipt of Stockholder Approval, 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. (ivv) The Company may, following receipt of Stockholder Approval and prior to the Final Period Date, at its option, irrevocably elect a Combination Settlement with a particular Specified Dollar Amount for all conversions subsequent to its notice by notice of such election to all Holders of Notes. (vi) With respect to any conversion, the cash, shares of Common Stock or combination of cash and shares of Common Stock due in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the ~~Issuer~~ Company has not received Stockholder Approval prior to the relevant Stockholder Approval Deadline or if the Company elects to satisfy its Conversion Obligation in respect of such conversion by ~~Physical~~ Stock Settlement, the ~~Issuer~~ 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 Stock equal to the product of (vii) the aggregate principal amount of Notes to be converted, divided by $1,000, and (viii) the Conversion Rate in effect on the Conversion ~~Date (and cash in lieu of fractional shares as provided herein)~~Date; (B) if the ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the ~~Issuer~~ 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 40 30 consecutive Trading Days during the related ~~Observation~~ Conversion Period; and (C) if the ~~Issuer~~ Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the ~~Issuer~~ 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 40 30 consecutive Trading Days during the related ~~Observation~~ Conversion Period. (vvii) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the ~~Issuer~~ Company promptly following the last day of the ~~Observation~~ Conversion Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of ~~delivering~~ any fractional ~~share of Common Stock~~share, the ~~Issuer~~ 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 Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to 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 any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) 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 ~~or by facsimile~~ 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 Obligation to be registered, (2) surrender such Notes, duly endorsed to the ~~Issuer~~ 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 14.02(h~~) and any taxes payable as described in Section 14.02(d) or Section 14.02(e~~). The Trustee (and if different, the Conversion Agent) shall notify the ~~Issuer~~ Company of any conversion pursuant to this 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 ~~Issuer~~ Company in respect of such Notes and ~~has~~ not validly withdrawn such Fundamental Change Repurchase Notice in accordance with 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. (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 14.03(b) and Section 14.07(a), the Issuer~~ The Company shall pay or deliver, as the case may be, through the Conversion Agent, the consideration due in respect of the Conversion Obligation (i) if the Company elects, or is required, to satisfy the Company’s Conversion Obligation by Stock Settlement, on the ~~second~~ third Business Day immediately following the relevant Conversion ~~Date, if the Issuer elects Physical Settlement~~ Date or (~~provided that for any Notes converted after the close of business~~ ii) on the ~~Regular Record Date immediately preceding the Maturity Date, the Issuer 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~~ Conversion Period, in the case of any other Settlement Method, provided that if prior to a relevant Conversion Date the Company’s Common Stock has been replaced by Reference Property consisting solely of cash, the Company shall pay the consideration due in respect of such Conversion Date on the third Business Day immediately following such Conversion Date, and notwithstanding the foregoing, no Conversion Period will apply to such conversions. If any shares of Common Stock are due to converting Holders, the ~~Issuer~~ Company shall issue or cause to be issued, and deliver to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common Stock to which such Holder shall be entitled in satisfaction of the ~~Issuer~~Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the ~~Issuer~~ Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the ~~Issuer~~ 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 ~~Issuer~~ Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common 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~~ the tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name or delivered to a person other than the Holder until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares ~~of Common Stock~~ issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The ~~Issuer~~ 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes~~. The ~~Issuer~~Company’s settlement of the ~~full~~ Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than ~~cancelled~~canceled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common 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 ~~shall~~ 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~~ after the close of business on any Regular Record Date but prior to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest 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 Issuer has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the date on which the corresponding interest payment is made; (3) if the Issuer 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 ~~date on which the~~ corresponding ~~interest payment is made~~Interest Payment Date; or (43) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. ~~Therefore~~As a result of the foregoing, ~~for~~ the ~~avoidance of doubt,~~ Company shall pay interest on the Maturity Date on all ~~Holders of record on~~ Notes converted after 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 such Redemption~~ Date, and converting Holders will not be required to pay equivalent interest amounts. No other payment or adjustment will be made for accrued interest on a converted Note, other than as ~~applicable, regardless of whether their Notes have been converted following such Regular Record Date~~set forth in this Indenture. (i) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be ~~deemed to be the holder~~ treated as a stockholder of record ~~of such shares~~ as of the close of business on the relevant Conversion Date (in if the ~~case of Physical~~ Company elects, or is required, to satisfy the related Conversion Obligation by Stock Settlement) or the last Trading Day of the relevant ~~Observation~~ Conversion Period (in if the ~~case of~~ Company satisfies 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 as of the time immediately prior to the close of business on the Conversion Date~~conversion. (j) The ~~Issuer~~ Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of ~~delivering~~ any fractional share of Common Stock issuable upon conversion based on the Daily VWAP ~~for~~ on the relevant Conversion Date (in the case of ~~Physical~~ Stock Settlement) or based on the Daily VWAP ~~for~~ on the last Trading Day of the relevant ~~Observation~~ Conversion Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the ~~Issuer~~ Company has received Stockholder Approval prior to the relevant Stockholder Approval Deadline and elected ~~(or is deemed to have elected)~~ Combination Settlement, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the ~~relevant Observation~~ applicable Conversion Period and any fractional shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Sources: Indenture (LGI Homes, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this ~~Section~~ ‎Section 14.02, ~~Section~~ ‎Section 14.03(b) and ~~Section~~ ‎Section 14.07(a), upon conversion of any Note, the ~~Issuer~~ 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”), shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02. (i) All conversions of Called Notes for which the relevant Conversion Date occurs ~~on or after November 15, 2025~~during the related Redemption Period, and all conversions for which the relevant Conversion Date occurs on or after ~~the Issuer’s issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date~~December 15, 2029, shall be settled using the same Settlement ~~Method~~Method (including the same Specified Dollar Amount, if applicable). (ii) Except for any conversions of Called Notes referred to in ‎Section 14.02(a)(i) for which the relevant Conversion Date occurs ~~after the Issuer’s issuance of~~ during a Redemption ~~Notice with respect to the Notes but prior to the related Redemption Date~~ Period, and any conversions for which the relevant Conversion Date occurs on or after ~~November~~ December 15, ~~2025~~2029, the ~~Issuer~~ Company shall use the same Settlement Method (including the same Specified Dollar Amount, if applicable) for all conversions with the same Conversion Date, but the ~~Issuer~~ 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~~Date (or one of the periods described in the fourth immediately succeeding set of parentheses, as the case may be), the ~~Issuer~~ Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion ~~Date~~Date (or such period, as the case may be), the ~~Issuer~~ Company shall deliver such Settlement Notice in writing to ~~the~~ converting Holders (with a written copy to the Trustee and the Conversion Agent (if other than the Trustee)) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of (x) any conversions of Called Notes for which the relevant Conversion Date occurs ~~(x) after the date of issuance of~~ during a ~~Redemption Notice with respect to the Notes and prior to the~~ related Redemption ~~Date~~Period, in ~~such~~ the relevant Redemption ~~Notice~~ Notice, or (y) any conversions of Notes for which the relevant Conversion Date occurs on or after ~~November~~ December 15, ~~2025~~2029, no later than ~~November~~ December 15, ~~2025~~2029) (in each case, the “Settlement Method Election Deadline”). If the ~~Issuer~~ Company does not elect a Settlement Method with respect to a conversion prior to the deadline set forth in the immediately preceding sentence, then the ~~Issuer~~ Company shall no longer have the right to elect Cash Settlement ~~or Physical Settlement with respect to~~ for such conversion and the ~~Issuer~~ 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, for 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 ~~Issuer~~ Company delivers a Settlement Notice to Holders electing Combination Settlement in respect of its Conversion 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 to Holders 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. If the Company calls any Notes for Redemption, and the related Redemption Date is on or after December 15, 2029, then the Settlement Method that the Company elects to apply for conversions of Called Notes with a Conversion Date occurring during the related Redemption Period must be the same Settlement Method that applies to all conversions with a Conversion Date that occurs on or after December 15, 2029. By notice to Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to December 15, 2029, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through any Settlement Method that the Company is then permitted to elect (including Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of the Notes of $1,000 or with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of the Notes at or above any specified amount set forth in such election notice) for all Conversion Dates occurring subsequent to delivery of such notice. If the Company elects to irrevocably fix the Settlement Method to Combination Settlement with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of the Notes at or above a specified amount, the Company shall, after the date of such election, as the case may be, inform Holders converting their Notes, the Trustee and the Conversion Agent (if other than the Trustee) in writing of such Specified Dollar Amount in respect of the relevant conversion or conversions no later than the relevant Settlement Method Election Deadline for such conversion or conversions as described above, or, if the Company does not timely inform the Holders converting their Notes, the Trustee and the Conversion Agent (if other than the Trustee) of the Specified Dollar Amount, such Specified Dollar Amount shall be the specific amount set forth in the election notice or, if no specific amount was set forth in the election notice, such Specified Dollar Amount shall be deemed to be $1,000 per $1,000 principal amount of the Notes. In no event may the Company elect Combination Settlement with a Specified Dollar Amount that is less than $1,000 per $1,000 principal amount of Notes. Notwithstanding the foregoing, no such irrevocable election 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 the Company’s option. If the Company irrevocably fixes the Settlement Method pursuant to the immediately preceding paragraph, then the Company shall either post the fixed Settlement Method on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission. (iv) The ~~cash~~cash or, ~~shares of Common Stock or~~ if applicable, combination of cash and shares of Common Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Issuer elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Issuer shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date (and cash in lieu of fractional shares as provided herein); (B) if the Issuer elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Issuer 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 40 consecutive Trading Days during the related Observation Period; and (C) if the Issuer elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Issuer 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 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 Issuer 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 Stock, the Issuer 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 Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to 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 any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) 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 or by facsimile 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 Obligation to be registered, (2) surrender such Notes, duly endorsed to the Issuer 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 14.02(h) and any taxes payable as described in Section 14.02(d) or Section 14.02(e). The Trustee (and if different, the Conversion Agent) shall notify the Issuer of any conversion pursuant to this 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 Issuer in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with 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. (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 14.03(b) and Section 14.07(a), the Issuer 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 Issuer elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer 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 shares of Common Stock are due to converting Holders, the Issuer shall issue or cause to be issued, and deliver to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common Stock to which such Holder shall be entitled in satisfaction of the Issuer’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Issuer 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 Issuer 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 Issuer shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common 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 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 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Issuer 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes. The Issuer’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common 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 shall receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Issuer has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the date on which the corresponding interest payment is made; (3) if the Issuer 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 date on which the corresponding interest payment is made; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date or any Redemption Date shall receive the full interest payment due on the Maturity Date or such Redemption Date, as applicable, regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name any shares of Common Stock delivered upon conversion is registered shall be deemed to be the holder of record of such shares as of the close of business on the relevant Conversion Date (in the case of Physical Settlement) or the last Trading Day of the relevant Observation Period (in the case of 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 as of the time immediately prior to the close of business on the Conversion Date. (j) The Issuer shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common 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 Issuer has elected (or is deemed to have elected) Combination Settlement, the full number of 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 shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Sources: Indenture (Kosmos Energy Ltd.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, on the ~~Issuer~~ 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”), shares~~ Settlement Amount” equal to the sum of ~~Common Stock~~the Daily Settlement Amounts for each of the 30 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 Stock in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02. (i) All conversions for which the relevant Conversion ~~Date~~ Dates occurs (x) on or after ~~November~~ June 15, ~~2025, and all conversions for which the relevant Conversion Date occurs after the Issuer’s issuance of~~ 2029 or (y) during a Redemption ~~Notice with respect to the Notes and prior to the related Redemption Date,~~ Period shall be settled using the same ~~Settlement Method~~forms and proportions of consideration. (ii) Except for any conversions for which the relevant Conversion Date occurs ~~after the Issuer’s issuance of~~ during a Redemption ~~Notice with respect to the Notes but prior to the related Redemption Date~~ Period and any conversions for which the relevant Conversion Date occurs on or after ~~November~~ June 15, ~~2025~~2029, the ~~Issuer~~ Company shall use the same ~~Settlement Method~~ forms and proportions of consideration for all conversions ~~with~~ occurring on the same Conversion Date, but the ~~Issuer~~ Company shall not have any obligation to use the same ~~Settlement Method~~ forms and proportions of consideration with respect to conversions ~~with~~ that occur on different Conversion Dates. (iii) If, in respect of any Conversion ~~Date~~Date (or in the case of any conversions occurring (x) during a Redemption Period or (y) on or after June 15, 2029), the ~~Issuer~~ 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~~Date (or such period, as the ~~Issuer shall deliver such Settlement Notice in writing~~ case may be) to ~~the Holders with a copy to~~ converting Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions ~~for which the relevant Conversion Date occurs~~ occurring (x) ~~after the date of issuance of~~ during a Redemption ~~Notice with respect to the Notes and prior to the related Redemption Date~~Period, in such Redemption ~~Notice~~ Notice, or (y) on or after ~~November~~ June 15, ~~2025~~2029, no later than ~~November~~ the close of business on the Trading Day immediately preceding June 15, ~~2025~~2029) (in each case, the “Cash Percentage Election Deadline”), and the Company shall indicate in such Cash Percentage Notice the percentage of the consideration due upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”). If the ~~Issuer~~ Company does not ~~elect a Settlement Method~~ make such an election at or prior to the ~~deadline set forth in the immediately preceding sentence~~applicable Cash Percentage Election Deadline, the ~~Issuer~~ Company shall no longer have the right to elect a Cash ~~Settlement or Physical Settlement~~ Percentage with respect to such conversion or during such period and the ~~Issuer~~ Company shall be deemed to have elected ~~Combination Settlement~~ to, and the Company shall, 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 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 Issuer 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. (iv) The cash, shares of Common Stock or combination of cash and delivering shares of Common Stock in respect of ~~any conversion of Notes~~ the remainder (the “Settlement Amount”) shall be computed as follows: (A) if the Issuer elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Issuer shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date (and other than cash in lieu of any fractional ~~shares as provided herein~~share)~~; (B)~~ , if any, of the ~~Issuer elects to satisfy its~~ Conversion Obligation in ~~respect~~ excess of ~~such conversion by Cash Settlement,~~ the ~~Issuer shall pay to~~ aggregate principal portion of the ~~converting Holder in respect of each $1,000 principal amount of~~ Notes being converted ~~cash~~ as set forth elsewhere in an amount equal to the sum of the Daily Conversion Values for each of the 40 consecutive Trading Days during the related Observation Period; and (C) if the Issuer elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Issuer 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 40 consecutive Trading Days during the related Observation Periodthis Section 14.02. (viv) The Daily Settlement Amounts, the Daily Net Settlement Amounts ~~(if applicable)~~ and the Daily Conversion Values ~~(if applicable)~~ shall be determined by the ~~Issuer~~ Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts, 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 Stock, the ~~Issuer~~ 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 fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section 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 14.02(h) and any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) 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 ~~or by facsimile~~ 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 Obligation to be registered, (2) surrender such Notes, duly endorsed to the ~~Issuer~~ 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 14.02(h~~) and any taxes payable as described in Section 14.02(d) or Section 14.02(e~~). The Trustee (~~and~~ and, if different, the Conversion Agent) shall notify the ~~Issuer~~ Company of any conversion pursuant to this 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 ~~Issuer~~ Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with 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. (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 14.03(b) and Section 14.07(a), the ~~Issuer~~ 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 Issuer elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer 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 relevant Observation Period~~, in the case of any other Settlement Method~~. If any shares of Common Stock are due to converting Holders, the ~~Issuer~~ Company shall issue or cause to be issued, and deliver to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common Stock to which such Holder shall be entitled in satisfaction of the ~~Issuer~~Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the ~~Issuer~~ Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the ~~Issuer~~ 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 ~~Issuer~~ Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common 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 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 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The ~~Issuer~~ 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes~~. The ~~Issuer~~Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but ~~not including~~excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~not including~~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 Stock~~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 ~~shall~~ will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Issuer has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the date on which the corresponding interest payment is made; (3) if the Issuer 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 date on which~~ succeeding the corresponding ~~interest payment~~ Interest Payment Date; (3) if the Company has specified a Redemption Date that is ~~made~~after a Regular Record Date and on or prior to the second Scheduled Trading Day immediately succeeding the corresponding Interest Payment Date; or (4) to the extent of any Defaulted ~~Amounts~~Amounts or Additional Interest, if any Defaulted Amounts or Additional Interest exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, any Fundamental Change Repurchase Date or ~~any~~ Redemption ~~Date~~ Date, in each case, as described above, shall receive the full interest payment due on the Maturity Date or ~~such Redemption Date, as applicable,~~ 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. (i) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be ~~deemed to be the holder~~ treated as a stockholder of record ~~of such shares~~ as of the close of business on the ~~relevant Conversion Date (in the case of Physical Settlement) or the~~ last Trading Day of the relevant Observation ~~Period (in the case of 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 as of the time immediately prior to the close of business on the Conversion Date~~conversion. (j) The ~~Issuer~~ Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common 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 ~~Issuer~~ Company has elected (or is deemed to have elected) ~~Combination Settlement~~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 ~~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 shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Sources: Indenture (Box Inc)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the ~~Issuer shall~~ Company 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 Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with ~~subsection (j~~Section 14.02(i) ~~of this Section 14.02~~ (“Physical Settlement”) ), or a combination of cash and shares of the Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with ~~subsection (j~~Section 14.02(i) ~~of this Section 14.02~~ (“Combination Settlement”)~~, at its election~~, as set forth in this Section 14.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~November 15~~January 1, ~~2025,~~ 2023 and all conversions ~~for which the relevant Conversion Date occurs~~ occurring after the ~~Issuer’s issuance~~ date the Company issues a Notice of ~~a Redemption Notice with respect to the Notes~~ 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 after the Issuer’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 ~~November 15~~January 1, ~~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 ~~Issuer~~ 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 ~~Issuer~~ 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 January 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 $1,000 for all Conversion Dates occurring subsequent to delivery of such notice. (~~iii~~ii) ~~If, in respect of any Conversion Date~~If the Company elects a Settlement Method, the ~~Issuer elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date, the Issuer~~ Company shall deliver ~~such Settlement Notice in writing~~ notice to ~~the~~ Holders ~~with a copy to the Trustee and~~ through the Conversion Agent ~~(if other than~~ of such Settlement Method the ~~Trustee)~~ Company has selected no later than the close of business on the 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 January 1, 2023, no later than January 1, 2023 or (xB) in the case of any conversions occurring after the date of issuance of a Notice of Tax Redemption ~~Notice with respect to the Notes~~ and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Tax Redemption Date, in such ~~Redemption~~ Notice ~~or (y) on or after November 15, 2025, no later than November 15, 2025~~of Tax Redemption). If the ~~Issuer~~ Company does not timely elect a Settlement ~~Method prior to the deadline set forth in the immediately preceding sentence~~Method, the ~~Issuer~~ Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to ~~such conversion~~ that Conversion Date and the ~~Issuer~~ 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 Issuer 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. (iviii) The cash, shares of Common Stock or combination of cash and shares of Common 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 ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the ~~Issuer~~ 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 Stock equal to the Conversion Rate ~~in effect~~ on the Conversion Date (~~and~~ plus cash in lieu of any fractional ~~shares as provided herein~~share of Common Stock issuable upon conversion); (B) if the ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the ~~Issuer~~ 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 40 consecutive VWAP Trading Days during the related Observation Period; and (C) if the ~~Issuer~~ Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the ~~Issuer~~ 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 40 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 ~~Issuer~~ 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 Stock, the ~~Issuer~~ 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 Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (bi) ~~Subject to Section 14.02(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 14.02(h) and any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) 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 or by facsimile~~ 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 shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Issuer 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 ~~14.02(h) and any taxes payable as described in Section 14.02(d) or Section 14.02(e~~14.02(g). The Trustee (and if different, the Conversion Agent) shall notify the ~~Issuer~~ 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. ~~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 Issuer 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 (or, in the case of a Global Note, has complied with the Applicable Procedures with respect to such a withdrawal) in accordance with the terms of Section 15.03. If ~~more than one Note shall be surrendered for conversion~~ a Holder has already delivered a Fundamental Change Repurchase Notice, such Holder’s right to withdraw such notice and convert the Notes that are subject to repurchase will terminate at ~~one time by~~ the ~~same Holder, the Conversion Obligation with respect to such Notes shall be computed~~ close of business on the ~~basis of~~ Business Day immediately preceding the ~~aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered~~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 14.03(b) and Section 14.07(a), the ~~Issuer~~ 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 ~~Issuer~~ Company elects Physical ~~Settlement~~ Settlement; or (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer shall deliver the consideration due in respect of the Conversion Obligation on the Maturity Date), or on 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 Stock are due to converting Holders, the ~~Issuer~~ Company shall issue or cause to be issued, and deliver ~~to the Conversion Agent or~~ to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the ~~Depositary~~ Depositary, as the case may be, for the full number of shares of Common Stock to which such Holder shall be entitled in satisfaction of the ~~Issuer~~Company’s Conversion Obligation. (d) In case any Certificated Note shall be surrendered for partial conversion, in an Authorized Denomination, the ~~Issuer~~ Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder ~~of the Note~~ so surrendered a new Note or Notes in ~~authorized denominations~~ 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 ~~Issuer~~ 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 ~~Issuer~~ Company shall pay any documentary, stamp or similar issue or transfer tax due on the ~~issue~~ issuance of any shares of Common Stock upon ~~conversion~~conversion of such Note, 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 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 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14. (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 ~~Issuer~~ 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes~~. The ~~Issuer~~Company’s ~~settlement~~ payment or delivery, as the case may be, of the ~~full Conversion Obligation~~ Settlement Amount upon conversion of any Note shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than ~~cancelled~~canceled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common 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 shall receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so ~~converted~~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 ~~Issuer~~ Company has ~~specified~~ 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 ~~date on which the~~ corresponding ~~interest payment is made;~~ Interest Payment Date; (3iii) if the ~~Issuer~~ 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 ~~date on which the~~ corresponding ~~interest payment is made~~Interest Payment Date; or or (4iv) to the extent of any ~~Defaulted Amounts~~overdue interest, if any ~~Defaulted Amounts~~ overdue interest exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, any Fundamental Change Repurchase Date or and any Tax Redemption ~~Date~~ as described in clauses (ii) and (iii) above shall receive and retain the full interest payment due on the Maturity Date or ~~such Redemption Date, as applicable,~~ other applicable Interest Payment Date regardless of whether their Notes have been converted following such Regular Record Date. (ih) The Person in whose name any shares of Common Stock delivered upon conversion is registered shall ~~be deemed to be~~ become the holder of record of such shares as of the close of business on (i) the relevant Conversion Date if the Company elects Physical Settlement or (~~in the case of Physical Settlement~~ii) or the last VWAP Trading Day of the relevant Observation Period ~~(in~~ if the ~~case of~~ Company elects or is deemed to 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 time immediately prior to~~ the close of business on such Regular Record Date shall have the ~~Conversion~~ right to receive the interest payable on such Interest Payment Date, in accordance with Section 14.02(g). (ji) The ~~Issuer~~ Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of ~~delivering~~ any fractional share of Common 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 ~~Issuer~~ Company has elected (or is deemed to ~~have elected~~elect) Combination Settlement, the full number of 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 ~~shares~~ share remaining after such computation shall be paid in cash.

Appears in 1 contract

Sources: Indenture (Carnival PLC)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~14.02~~5.02, Section ~~14.03(b~~5.03(b) and Section ~~14.07(a~~5.07(a), upon conversion of any Note, the ~~Issuer shall~~ Company 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 Common ~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common~~ Stock ~~in accordance with subsection (j) of this Section 14.02~~ (“Physical Settlement”) or a combination of cash and shares of Common ~~Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common~~ Stock ~~in accordance with subsection (j) of this Section 14.02~~ (“Combination Settlement”), ~~at its election,~~ as set forth in this Section ~~14.02~~5.02. (i) All conversions for which the relevant Conversion Date occurs on or after November 15, 2025, and all conversions for which the relevant Conversion Date occurs after the Issuer’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 Issuer’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 November 15, 2025, the Issuer shall The Company will use the same Settlement Method for all ~~conversions with~~ conversion occurring on the same Conversion Date, but ~~the Issuer shall~~ will not have any obligation to use the same Settlement Method with respect to conversions ~~with~~ that occur on different Conversion Dates. Notwithstanding the foregoing, all conversions with a Conversion Date occurring on or after February 15, 2023 will be settled using the same Settlement Method, and the Company will notify Holders of that Settlement Method no later than February 15, 2023. (~~iii~~ii) ~~If, in respect of any Conversion Date~~If the Company elects a Settlement Method, the ~~Issuer elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date, the Issuer~~ Company shall deliver ~~such Settlement Notice in writing~~ notice to ~~the~~ Holders ~~with a copy to the Trustee and~~ so converting through the Conversion Agent (if other than the Trustee) and the Trustee of such Settlement Method the Company has selected no later than the ~~close~~ Close of ~~business~~ Business on the Trading Day immediately following the ~~relevant~~ related Conversion ~~Date (or~~Date, ~~in the case of any conversions for which the relevant Conversion Date occurs (x) after the date of issuance of a Redemption Notice~~ or with respect to ~~the Notes and prior to the related Redemption Date, in such Redemption Notice or (y)~~ conversions with a Conversion Date occurring on or after ~~November~~ February 15, ~~2025~~2023, no later than ~~November~~ February 15, ~~2025)~~2023. If the ~~Issuer~~ Company does not timely elect a Settlement Method ~~prior~~ with respect to ~~the deadline set forth in the immediately preceding sentence~~a Conversion Date, the ~~Issuer~~ Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to such ~~conversion~~ Conversion Date and the ~~Issuer~~ Company shall be deemed to have elected Combination Settlement in respect of its Conversion ~~Obligation~~Obligations, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. ~~Such~~ If the Company has elected Combination Settlement ~~Notice shall specify~~ in respect of any conversion but does not timely notify the ~~relevant Settlement Method and in the case~~ converting Holders 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 Issuer 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. (iviii) The cash, shares of Common Stock or combination of cash and shares of Common 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 ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the ~~Issuer~~ Company shall deliver to the converting ~~Holder~~ Holder, in respect of each $1,000 principal amount of Notes being ~~converted~~ converted, a number of shares of Common Stock equal to the Conversion Rate ~~in effect~~ on the Conversion Date (~~and~~ plus cash in lieu of any fractional ~~shares as provided herein~~share of Common Stock issuable upon conversion); (B) if the ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the ~~Issuer~~ Company shall pay to the converting ~~Holder~~ Holder, in respect of each $1,000 principal amount of Notes being ~~converted~~ converted, cash in an amount equal to the sum of the Daily Conversion Values for each of the 40 consecutive VWAP Trading Days during the related Observation Period; and (C) if the ~~Issuer~~ Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the ~~Issuer~~ 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, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 40 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 ~~Issuer~~ 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 Stock, the ~~Issuer~~ 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 Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (bi) ~~Subject to Section 14.02(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 5.02(d) and Section 5.02(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(h) and any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) and 5.02(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 or by facsimile~~ 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 shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Issuer 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 5.02(d) and Section 5.02(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(h) and any taxes payable as described in Section 14.02(d) or Section 14.02(e~~5.02(g). The Trustee (and if different, the Conversion Agent) shall notify the ~~Issuer~~ Company of any conversion pursuant to this Article 14 V 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~~ delivered a Fundamental Change Repurchase Notice with respect to ~~the Issuer in respect of~~ a Note, such ~~Notes and~~ Holder may not convert that Note until such Holder has ~~not~~ validly withdrawn such Fundamental Change Repurchase Notice (or, in ~~accordance~~ the case of a Global Note, has complied with ~~Section 15.03. If more than one Note shall be surrendered for conversion at one time by~~ the ~~same Holder, the Conversion Obligation~~ Applicable Procedures with respect to such a withdrawal) in accordance with the terms of Section 4.01. If a Holder has delivered a Fundamental Change Repurchase Notice, such Holder’s right to withdraw such notice and convert the Notes ~~shall be computed~~ that are subject to repurchase will terminate at the Close of Business on the ~~basis of~~ Business Day immediately preceding the ~~aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered~~relevant Fundamental Change Repurchase Date. (c) A 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~~Section 5.02(b) above. ~~Except as set forth in~~ Subject to the provisions of Section ~~14.03(b~~5.03(b) and Section ~~14.07(a~~5.07(a), the ~~Issuer~~ 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 ~~Issuer~~ Company elects Physical Settlement (provided ~~that for~~ that, with respect to any ~~Notes converted after the close of business on~~ conversion following the Regular Record Date immediately preceding the ~~Maturity Date~~Stated Maturity, the ~~Issuer shall deliver the consideration due in respect of the Conversion Obligation~~ Company will settle any such conversion on the Stated Maturity ~~Date~~or, if such day is not a Business Day, the first Business Day immediately following the Stated Maturity)~~, 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 Stock are due to converting Holders, the ~~Issuer~~ Company shall issue or cause to be issued, and deliver ~~to the Conversion Agent or~~ to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the ~~Depositary~~ Depositary, as the case may be, for the full number of shares of Common Stock to which such Holder shall be entitled in satisfaction of the ~~Issuer~~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 ~~Issuer~~ Company shall execute and upon receipt of a Company Order, the Trustee shall authenticate and deliver to or upon the written order of the Holder ~~of the Note~~ so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the ~~Issuer~~ 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 ~~Issuer~~ Company shall pay any documentary, stamp or similar issue or transfer tax due on the ~~issue~~ issuance of any shares of Common Stock upon ~~conversion~~conversion of such Note, 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 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 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14. (g)~~ Upon the conversion of an interest in a Global Note, the Trustee, or the Securities 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 ~~Issuer~~ 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes~~. The ~~Issuer~~Company’s ~~settlement~~ payment or delivery, as the case may be, of the ~~full Conversion Obligation~~ Settlement Amount upon conversion of any Note shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common 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~~ Close of ~~business~~ Business on a Regular Record Date for the payment of interest, but prior to the Open of Business on the immediately following Interest Payment Date, Holders of such Notes ~~as of the close of business on such Regular Record Date~~ 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~~ Close of ~~business~~ Business on any 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 the Notes so ~~converted~~converted on such 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;~~ Stated Maturity; (2ii) if the Issuer has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the date on which the corresponding interest payment is made; (3) if the Issuer 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 ~~date on which the~~ corresponding ~~interest payment is made~~Interest Payment Date; or or (4iii) to the extent of any ~~Defaulted Amounts~~overdue interest, if any ~~Defaulted Amounts~~ overdue interest exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record as of the Close of Business on the Regular Record Date immediately preceding the Stated Maturity and any Fundamental Change Repurchase Date ~~or any Redemption Date~~ as described in clause (ii) above shall receive and retain the full interest payment due on the Stated Maturity or other applicable Interest Payment Date ~~or such Redemption Date, as applicable,~~ regardless of whether their Notes have been converted following such Regular Record Date. (ih) The ~~Person~~ person in whose name any shares of Common Stock delivered upon conversion is registered shall ~~be deemed to be~~ become the holder of record of such shares as of the ~~close~~ Close of ~~business~~ Business on (i) the relevant Conversion Date if the Company elects Physical Settlement or (~~in the case of Physical Settlement~~ii) or the last VWAP Trading Day of the relevant Observation Period ~~(in~~ if the ~~case of~~ Company elects or is deemed to elect Combination Settlement~~), as the case may be~~. Upon a conversion of Notes, such ~~Person~~ 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 ~~time immediately prior~~ Close of Business on such Regular Record Date shall have the right to receive the ~~close of business~~ interest payable on ~~the Conversion~~ such Interest Payment Date, in accordance with Section 5.02(g). (ji) The ~~Issuer~~ Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common 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 ~~Issuer~~ Company has elected (or is deemed to ~~have elected~~elect) Combination Settlement, the full number of 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 ~~shares~~ share remaining after such computation shall be paid in cash.

Appears in 1 contract

Sources: Indenture (KKR Real Estate Finance Trust Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~14.02~~13.02, Section ~~14.03(b~~13.03(b) and Section ~~14.07(a~~13.07(a), upon conversion of any Note, the ~~Issuer~~ 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 Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section ~~14.02~~ 13.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section ~~14.02~~ 13.02 (“Combination Settlement”), at its election, as set forth in this Section ~~14.02~~13.02. (i) All conversions for which the relevant Conversion Date occurs ~~on or after November 15, 2025, and all conversions for which the relevant Conversion Date occurs~~ after the ~~Issuer~~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 the 45th Scheduled Trading Day immediately preceding the Maturity Date, shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs after the ~~Issuer~~Company’s issuance of a Redemption Notice with respect to the Notes but prior to the related Redemption ~~Date~~ Date, and any conversions for which the relevant Conversion Date occurs on or after ~~November 15, 2025~~the 45th Scheduled Trading Day immediately preceding the Maturity Date, the ~~Issuer~~ Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the ~~Issuer~~ Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. The Company may, at any time prior to the 45th Scheduled Trading Day immediately preceding the Maturity Date, by written notice to Holders, the Trustee and the Conversion Agent, irrevocably elect one settlement method or irrevocably eliminate one or more Settlement Methods or irrevocably elect a Specified Dollar Amount to be applicable to Combination Settlements. (iii) If, in respect of any Conversion ~~Date~~Date (or the period described in the third immediately succeeding set of parentheses, as the case may be), the ~~Issuer~~ Company elects to deliver a written notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion ~~Date~~Date (or such period, as the case may be), the ~~Issuer~~ Company shall ~~deliver~~ send such Settlement Notice ~~in writing~~ to the ~~Holders with a copy to the Trustee and~~ Trustee, the Conversion Agent ~~(if other than the Trustee)~~ and converting Holders no later than the close of business on the first VWAP Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions 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~~ before the related Redemption Date, in such Redemption Notice or (y) on or after ~~November 15, 2025~~the 45th Scheduled Trading Day immediately preceding the Maturity Date, no later than ~~November 15, 2025~~the 45th Scheduled Trading Day immediately preceding the Maturity Date). If With respect to any conversion, if the ~~Issuer~~ Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, then the ~~Issuer~~ Company shall no longer have the right to elect Cash Settlement or Physical Settlement ~~with respect to such conversion~~ and ~~the Issuer~~ shall be deemed to have elected Combination Settlement in with respect ~~of its Conversion Obligation,~~ to such conversion and the Specified Dollar Amount per $1,000 principal amount of Notes ~~shall~~ will 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 ~~Issuer~~ 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. Notwithstanding anything to the contrary herein, if the Company calls any Notes for redemption pursuant to Article 15 and the related Redemption Date is on or after the 45th Scheduled Trading Day immediately preceding the Maturity Date, then the Settlement Method that shall apply to all conversions with a Conversion Date that occurs on or after the date the Company sends the related Redemption Notice and on or before the Scheduled Trading Day immediately preceding such Redemption Date shall be set forth in such Redemption Notice and shall be the same Settlement Method that applies to all conversions with a Conversion Date that occurs on or after the 45th Scheduled Trading Day immediately preceding the Maturity Date. (iv) The cash, shares of Common Stock or combination of cash and shares of Common Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the ~~Issuer~~ Company elects ~~to satisfy its Conversion Obligation in respect of such conversion by~~ Physical Settlement, the ~~Issuer~~ 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 Stock equal to the Conversion Rate in effect on the Conversion Date (~~and~~ provided that the Company shall deliver cash in lieu of fractional shares as ~~provided herein~~described in Section 13.02(j)); (B) if the ~~Issuer~~ Company elects ~~to satisfy its Conversion Obligation in respect of such conversion by~~ Cash Settlement, the ~~Issuer~~ 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 40 consecutive VWAP Trading Days during the related ~~Observation~~ Conversion Reference Period; and (C) if the ~~Issuer~~ Company elects (or is deemed to have elected) ~~to satisfy its Conversion Obligation in respect of such conversion by~~ Combination Settlement, the ~~Issuer~~ 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 40 consecutive VWAP Trading Days during the related ~~Observation~~ Conversion Reference Period. If more than one note is surrendered for conversion at any one time by the same holder, the conversion obligation with respect to such notes shall be computed on the basis of the aggregate principal amount of the notes (or specified portions thereof to the extent permitted thereby) so surrendered. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the ~~Issuer~~ 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 Stock, the ~~Issuer~~ 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 Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to 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 any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) 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 or by facsimile 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 Obligation to be registered, (2) surrender such Notes, duly endorsed to the Issuer 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 14.02(h) and any taxes payable as described in Section 14.02(d) or Section 14.02(e). The Trustee (and if different, the Conversion Agent) shall notify the Issuer of any conversion pursuant to this 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 Issuer in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with 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. (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 14.03(b) and Section 14.07(a), the Issuer 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 Issuer elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer 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 shares of Common Stock are due to converting Holders, the Issuer shall issue or cause to be issued, and deliver to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common Stock to which such Holder shall be entitled in satisfaction of the Issuer’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Issuer 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 Issuer 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 Issuer shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common 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 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 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Issuer 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes. The Issuer’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common 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 shall receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Issuer has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the date on which the corresponding interest payment is made; (3) if the Issuer 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 date on which the corresponding interest payment is made; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date or any Redemption Date shall receive the full interest payment due on the Maturity Date or such Redemption Date, as applicable, regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name any shares of Common Stock delivered upon conversion is registered shall be deemed to be the holder of record of such shares as of the close of business on the relevant Conversion Date (in the case of Physical Settlement) or the last Trading Day of the relevant Observation Period (in the case of 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 as of the time immediately prior to the close of business on the Conversion Date. (j) The Issuer shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common 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 Issuer has elected (or is deemed to have elected) Combination Settlement, the full number of 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 shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Sources: Indenture (Allegheny Technologies Inc)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~14.02, Section 14.03(b)~~ 14.02 and Section 14.07(a), upon conversion of any Note, the ~~Issuer~~ 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 Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02. (i) All conversions for which the relevant Conversion Date occurs ~~on or after November 15, 2025, and all conversions for which the relevant Conversion Date occurs~~ after the ~~Issuer~~Company’s issuance of a Notice of Redemption ~~Notice~~ with respect to the Notes and prior to the related Redemption ~~Date,~~ Date shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs after the ~~Issuer~~Company’s issuance of a Notice of 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 November 15, 2025~~Date, the ~~Issuer~~ Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the ~~Issuer~~ 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 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), the ~~Issuer~~ 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~~Date (or such period, as the ~~Issuer shall deliver such Settlement Notice~~ case may be) in writing (the “Settlement Notice”) to ~~the~~ converting Holders (with a copy to the Trustee and the Conversion Agent (if other than the Trustee)) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs ~~(x)~~ after the date of issuance of a Notice of Redemption ~~Notice~~ with respect to the Notes and prior to the related Redemption Date, in such ~~Redemption~~ Notice ~~or (y) on or after November 15, 2025, no later than November 15, 2025~~of Redemption). If the ~~Issuer~~ Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the ~~Issuer~~ Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to any conversion on such ~~conversion~~ Conversion Date or during such period, and the ~~Issuer~~ 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 ~~Issuer~~ 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. (iv) The cash, shares of Common Stock or combination of cash and shares of Common Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the ~~Issuer~~ 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 Stock equal to the Conversion Rate in effect on the Conversion Date ~~(and cash~~ or, in ~~lieu~~ the case of ~~fractional shares as provided herein)~~a Company Conversion, the Company Conversion Notice Date; (B) if the ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the ~~Issuer~~ 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 40 consecutive Trading Days during the related Observation Period~~Value; and (C) if the ~~Issuer~~ Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the ~~Issuer~~ 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~~ Combination Settlement ~~Amounts for each of the 40 consecutive Trading Days during the related Observation Period~~Amount. (v) The ~~Daily~~ Combination Settlement ~~Amounts~~ Amount (if applicable) and the ~~Daily~~ Conversion ~~Values~~ Value (if applicable) shall be determined by the ~~Issuer~~ Company promptly following the ~~last day of the Observation Period~~Conversion Date. Promptly after such determination of the ~~Daily~~ Combination Settlement ~~Amounts~~ Amount or the ~~Daily~~ Conversion ~~Values~~Value, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the ~~Issuer~~ Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the ~~Daily~~ Combination Settlement ~~Amounts~~ Amount or the ~~Daily~~ Conversion ~~Values~~Value, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section 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 14.02(h) and any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) 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 ~~or by facsimile~~ 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 Obligation to be registered, (2) surrender such Notes, duly endorsed to the ~~Issuer~~ 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 ~~any~~ (5) if required, pay all transfer and similar taxes ~~payable~~ as ~~described~~ set forth in Section 14.02(d) or and Section 14.02(e), if any. The Trustee (and if different, the Conversion Agent) shall notify the ~~Issuer~~ Company of any conversion pursuant to this 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~~ an Option of Holder to Elect Purchase or Optional Repurchase Notice to the ~~Issuer~~ Company in respect of such Notes and has not validly withdrawn such ~~Fundamental Change~~ Option of Holder to Elect Purchase or Optional Repurchase Notice in accordance with 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. (c) A Note shall be deemed to have been converted immediately prior to the close of business on either (i) the date ~~(the “Conversion Date”)~~ that the Holder has complied with the requirements set forth in subsection (b) ~~above~~above or (ii) in the case of a Company Conversion, the Company Conversion Date (the “Conversion Date”). Except as set forth in Section ~~14.03(b) and Section~~ 14.07(a), the ~~Issuer~~ 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 Issuer elects Physical Settlement~~ Date (provided ~~that for~~ that, with respect to any ~~Notes converted after the close of business on~~ Conversion Date following the Regular Record Date immediately preceding the Maturity ~~Date~~Date where Physical Settlement applies to the related conversion, the ~~Issuer~~ Company shall ~~deliver the consideration due in respect of the Conversion Obligation~~ 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 Stock are due to a converting ~~Holders~~Holder, the ~~Issuer~~ 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 Stock to which such Holder shall be ~~entitled~~ entitled, in book-entry format through the Depositary, in satisfaction of the ~~Issuer~~Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the ~~Issuer~~ Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the ~~Issuer~~ 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 ~~Issuer~~ Company shall pay any documentary, stamp or similar issue or transfer tax due on the ~~issue~~ issuance of any shares of Common Stock upon ~~conversion~~conversion thereof, 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 or refuse to instruct the stock transfer agent to deliver the certificates representing the shares of Common 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 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The ~~Issuer~~ 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes~~. The ~~Issuer~~Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common 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 ~~shall~~ will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1i) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2ii) if the ~~Issuer~~ Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the ~~Business~~ Scheduled Trading Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made~~Interest Payment Date; (3iii) if the ~~Issuer~~ Company has specified a ~~Fundamental~~ Change of Control Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made~~Interest Payment Date; or (4iv) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity ~~Date or~~ Date, any Redemption Date described in clause (ii) above and any Change of Control Repurchase Date described in clause (iii) above shall receive the full interest payment due on the Maturity Date or ~~such Redemption Date, as applicable,~~ other applicable Interest Payment Date in cash regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name ~~any~~ the shares of Common Stock ~~delivered~~ shall be issuable upon conversion ~~is registered~~ shall be ~~deemed to be the holder~~ treated as a stockholder of record ~~of such shares~~ as of the close of business on the relevant Conversion ~~Date (in the case of Physical Settlement) or the last Trading Day of the relevant Observation Period (in the case of Combination Settlement), as the case may be~~Date. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for ~~conversion as of the time immediately prior to the close of business on the Conversion Date~~conversion. (j) The ~~Issuer~~ Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common 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)~~Date. For each Note surrendered for conversion, if the ~~Issuer~~ Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the ~~aggregate Daily~~ Combination Settlement ~~Amounts for the relevant Observation Period~~ Amount and any fractional shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Sources: Indenture (Sunnova Energy International Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to Article 13, this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the ~~Issuer shall~~ Company 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 Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (ji) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of the Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (ji) of this Section 14.02 (“Combination Settlement”)~~, at its election~~, as set forth in this Section 14.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~November~~ February 15, ~~2025~~2038, and all conversions for which the relevant Conversion Date occurs after the ~~Issuer~~Company’s issuance of a Redemption Notice ~~with respect~~ pursuant to ~~the Notes~~ Section 16.01 and prior to the second Scheduled Trading Day immediately preceding the related Redemption ~~Date,~~ 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 after the ~~Issuer~~Company’s issuance of a Redemption Notice ~~with respect to the Notes~~ but prior to the second Scheduled Trading Day immediately preceding the related Redemption ~~Date~~ Date, and any conversions for which the relevant Conversion Date occurs on or after ~~November~~ February 15, ~~2025~~2038, the ~~Issuer~~ 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 ~~Issuer~~ 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~~If the Company elects a Settlement Method, the ~~Issuer elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date, the Issuer~~ Company shall deliver ~~such Settlement Notice in writing~~ notice to ~~the Holders with a copy to~~ Holders, the Trustee and the Conversion Agent (if other than the Trustee) of such Settlement Method the Company has selected no later than the close of business on the Trading Day immediately following the ~~relevant~~ related Conversion Date (~~or,~~ or in the case of any conversions 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 second Scheduled Trading Day immediately preceding the related Redemption Date, in such Redemption Notice or (y) on or after November 15, 2025, no later than November 15, 2025). If the Issuer does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Issuer shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to such conversion and the Issuer 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 Issuer 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 $1,000.064310-0812-15924-Active.25775846.6 60 (iviii) The cash, shares of Common Stock or combination of cash and shares of Common 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 ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the ~~Issuer~~ 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 Stock equal to the Conversion Rate ~~in effect~~ on the Conversion Date (~~and~~ plus cash in lieu of any fractional ~~shares as provided herein~~share of Common Stock issuable upon conversion); ; (B) if the ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the ~~Issuer~~ 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 40 25 consecutive VWAP Trading Days during the related Observation Period; ~~and~~ and (C) if the ~~Issuer~~ Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the ~~Issuer~~ 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 40 25 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 Issuer promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of plus cash ~~payable~~ in lieu of ~~delivering~~ any fractional share of Common Stock, the Issuer 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 Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section 14.02(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 14.02(h) and any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) 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 or by facsimile 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 Obligation to be registered, (2) surrender such Notes, duly endorsed to the Issuer 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 14.02(h) and any taxes payable as described in Section 14.02(d) or Section 14.02(e). The Trustee (and if different, the Conversion Agent) shall notify the Issuer of any conversion pursuant to this 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 Issuer in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 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~~hereby) so surrendered. (civ) ~~A Note~~ The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be ~~deemed to have been converted immediately prior to~~ determined by 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 14.03(b) and Section 14.07(a), the Issuer 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 Issuer elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer shall deliver the consideration due in respect of the Conversion Obligation on the Maturity Date), or on the second Business Day immediately Company promptly following the last VWAP Trading Day of the related Observation Period~~, in the case of any other Settlement Method~~. If any shares of Common Stock are due to converting Holders, the Issuer shall issue or cause to be issued, and deliver to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common Stock to which such Holder shall be entitled in satisfaction of the Issuer’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Issuer 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 Issuer 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 Issuer shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common 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 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 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Issuer 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes. The Issuer’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common 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 shall receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Issuer has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the date on which the corresponding interest payment is made; (3) if the Issuer 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 date on which the corresponding interest payment is made; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date or any Redemption Date shall receive the full interest payment due on the Maturity Date or such Redemption Date, as applicable, regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name any shares of Common Stock delivered upon conversion is registered shall be deemed to be the holder of record of such shares as of the close of business on the relevant Conversion Date (in the case of Physical Settlement) or the last Trading Day of the relevant Observation Period (in the case of 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 as of the time immediately prior to the close of business on the Conversion Date. (j) The Issuer shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common 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 Issuer has elected (or is deemed to have elected) Combination Settlement, the full number of 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 shares remaining Promptly after such ~~computation shall be paid in cash~~determination 064310-0812-15924-Active.25775846.

Appears in 1 contract

Sources: Indenture (Hope Bancorp Inc)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~14.02, Section 14.03(b)~~ 14.02 and Section 14.07(a), upon conversion of any Note, the ~~Issuer~~ 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 Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02. (i) All conversions for which the relevant Conversion Date occurs ~~on or after November 15, 2025, and all conversions for which the relevant Conversion Date occurs~~ after the ~~Issuer~~Company’s issuance of a Notice of Redemption ~~Notice~~ with respect to the Notes and prior to the related Redemption ~~Date,~~ Date shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs after the ~~Issuer~~Company’s issuance of a Notice of 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 November 15, 2025~~Date, the ~~Issuer~~ Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the ~~Issuer~~ 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 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), the ~~Issuer~~ 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~~Date (or such period, as the ~~Issuer shall deliver such Settlement Notice~~ case may be) in writing (the “Settlement Notice”) to ~~the~~ converting Holders (with a copy to the Trustee and the Conversion Agent (if other than the Trustee)) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs ~~(x)~~ after the date of issuance of a Notice of Redemption ~~Notice~~ with respect to the Notes and prior to the related Redemption Date, in such ~~Redemption~~ Notice ~~or (y) on or after November 15, 2025, no later than November 15, 2025~~of Redemption). If the ~~Issuer~~ Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the ~~Issuer~~ Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to any conversion on such ~~conversion~~ Conversion Date or during such period, and the ~~Issuer~~ 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 ~~Issuer~~ 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. (iv) The cash, shares of Common Stock or combination of cash and shares of Common Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the ~~Issuer~~ 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 Stock equal to the Conversion Rate in effect on the Conversion Date ~~(and cash~~ or, in ~~lieu~~ the case of ~~fractional shares as provided herein)~~a Company Conversion, the Company Conversion Notice Date; (B) if the ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the ~~Issuer~~ 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 40 consecutive Trading Days during the related Observation Period~~Value; and (C) if the ~~Issuer~~ Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the ~~Issuer~~ 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~~ Combination Settlement ~~Amounts for each of the 40 consecutive Trading Days during the related Observation Period~~Amount. (v) The ~~Daily~~ Combination Settlement ~~Amounts~~ Amount (if applicable) and the ~~Daily~~ Conversion ~~Values~~ Value (if applicable) shall be determined by the ~~Issuer~~ Company promptly following the ~~last day of the Observation Period~~Conversion Date. Promptly after such determination of the ~~Daily~~ Combination Settlement ~~Amounts~~ Amount or the ~~Daily~~ Conversion ~~Values~~Value, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the ~~Issuer~~ Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the ~~Daily~~ Combination Settlement ~~Amounts~~ Amount or the ~~Daily~~ Conversion ~~Values~~Value, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section 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 14.02(h) and any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) 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 ~~or by facsimile~~ 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 Obligation to be registered, (2) surrender such Notes, duly endorsed to the ~~Issuer~~ 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 ~~any~~ (5) if required, pay all transfer and similar taxes ~~payable~~ as ~~described~~ set forth in Section 14.02(d) or and Section 14.02(e), if any. The Trustee (and if different, the Conversion Agent) shall notify the ~~Issuer~~ Company of any conversion pursuant to this 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 of Control Repurchase Notice or Optional Repurchase Notice to the ~~Issuer~~ Company in respect of such Notes and has not validly withdrawn such ~~Fundamental~~ Change of Control Repurchase Notice or Optional Repurchase Notice in accordance with 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. (c) A Note shall be deemed to have been converted immediately prior to the close of business on either (i) the date ~~(the “Conversion Date”)~~ that the Holder has complied with the requirements set forth in subsection (b) ~~above~~above or (ii) in the case of a Company Conversion, the Company Conversion Date (the “Conversion Date”). Except as set forth in Section ~~14.03(b) and Section~~ 14.07(a), the ~~Issuer~~ 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 Issuer elects Physical Settlement~~ Date (provided ~~that for~~ that, with respect to any ~~Notes converted after the close of business on~~ Conversion Date following the Regular Record Date immediately preceding the Maturity ~~Date~~Date where Physical Settlement applies to the related conversion, the ~~Issuer~~ Company shall ~~deliver the consideration due in respect of the Conversion Obligation~~ 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 Stock are due to a converting ~~Holders~~Holder, the ~~Issuer~~ 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 Stock to which such Holder shall be ~~entitled~~ entitled, in book-entry format through the Depositary, in satisfaction of the ~~Issuer~~Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the ~~Issuer~~ Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the ~~Issuer~~ 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 ~~Issuer~~ Company shall pay any documentary, stamp or similar issue or transfer tax due on the ~~issue~~ issuance of any shares of Common Stock upon ~~conversion~~conversion thereof, 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 or refuse to instruct the stock transfer agent to deliver the certificates representing the shares of Common 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 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The ~~Issuer~~ 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes~~. The ~~Issuer~~Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common 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 ~~shall~~ will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the ~~Issuer~~ Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the ~~Business~~ Scheduled Trading Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made~~Interest Payment Date; (3) if the ~~Issuer~~ Company has specified a ~~Fundamental~~ Change of Control Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made~~Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity ~~Date or~~ Date, any Redemption Date described in clause (2) above and any Change of Control Repurchase Date described in clause (3) above shall receive the full interest payment due on the Maturity Date or ~~such Redemption Date, as applicable,~~ other applicable Interest Payment Date in cash regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name ~~any~~ the shares of Common Stock ~~delivered~~ shall be issuable upon conversion ~~is registered~~ shall be ~~deemed to be the holder~~ treated as a stockholder of record ~~of such shares~~ as of the close of business on the relevant Conversion ~~Date (in the case of Physical Settlement) or the last Trading Day of the relevant Observation Period (in the case of Combination Settlement), as the case may be~~Date. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for ~~conversion as of the time immediately prior to the close of business on the Conversion Date~~conversion. (j) The ~~Issuer~~ Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common 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)~~Date. For each Note surrendered for conversion, if the ~~Issuer~~ Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the ~~aggregate Daily~~ Combination Settlement ~~Amounts for the relevant Observation Period~~ Amount and any fractional shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Sources: Indenture (Sunnova Energy International Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) ~~Subject to this~~ Except as provided in Section ~~14.02, Section 14.03(b~~13.03(b) and Section ~~14.07(a~~13.07(a), upon conversion of any Note, the ~~Issuer shall~~ Company will pay or deliver, as ~~the case may be~~applicable, ~~to the converting Holder, in respect of each $1,000 principal amount of Notes being converted,~~ (x) cash (“Cash Settlement”), ; (y) shares of Common Stock, ~~together with cash~~together, if applicable, with cash in lieu of delivering any fractional share of Common Stock in accordance with ~~subsection (j~~Section 13.02(k) ~~of this Section 14.02~~ (“Physical Settlement”); or (z) or a combination of cash and shares of Common Stock, ~~together with cash~~together, if applicable, with cash in lieu of delivering any fractional share of Common Stock in accordance with ~~subsection (j~~Section 13.02(k) ~~of this Section 14.02~~ (“Combination Settlement”), in each case at ~~its~~ the Company’s election, ~~as set forth in this Section 14.02~~subject to the following. (i) All conversions for which the relevant Conversion Date occurs on or after November 15, 2025, and all conversions for which the relevant Conversion Date occurs after the Issuer’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. Except as provided in clause (ii) Except for any conversions for which the relevant Conversion Date occurs after the Issuer’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 November 15, 2025~~(iii) below, the ~~Issuer shall~~ Company must use the same Settlement Method for all conversions with a Conversion Date that occurs on the same ~~Conversion Date~~day, but the ~~Issuer shall~~ Company will not ~~have any obligation~~ be obligated to use the same Settlement Method ~~with respect to~~ for conversions with Conversion Dates that occur on different days. If the Company elects a Settlement Method for a conversion with a Conversion ~~Dates~~Date that occurs before February 3, 2025, then the Company will send notice of such Settlement Method to the converting Holder no later than the Close of Business on the Business Day immediately after the Conversion Date. (ii) Except as provided in clause (iii) below, all conversions with a Conversion Date occurring on or after February 3, 2025 will be settled using the same Settlement Method, and the Company will send notice of such Settlement Method to Holders (with a copy to the Conversion Agent) no later than the Close of Business on February 3, 2025. (iii) IfNotwithstanding anything to the contrary in clauses (i) or (ii) above, if the Company calls any Notes for redemption, then (x) the Company will specify in the related Notice of Optional Redemption (and, in the case of an Optional Redemption of less than all outstanding Notes, in a notice simultaneously sent to all Holders of Notes not called for Optional Redemption) the Settlement Method that will apply to all conversions of Notes called for redemption pursuant to such Notice of Optional Redemption with a Conversion Date that occurs on or after the date the Company has sent such Notice of Optional Redemption and before the Business Day immediately before the related Redemption Date (or, if the Company Defaults in the payment of the Redemption Price, the day on which such Default is no longer continuing); and (y) if the related Redemption Date occurs on or after February 3, 2025, then such Settlement Method must be the same Settlement Method that applies to all conversions with a Conversion Date that occurs on or after February 3, 2025. (iv) If the Company does not timely elect a Settlement Method with respect to the conversion of any ~~Conversion Date~~Note, then the Company will be deemed to have elected the Default Settlement Method. If the Company timely elects Combination Settlement with respect to the conversion of any Note but does not timely notify the converting Holder of the applicable Specified Dollar Amount, then the Specified Dollar Amount for such conversion will be deemed to be $1,000 per $1,000 principal amount of Notes. For the avoidance of doubt, the ~~Issuer elects~~ Company’s failure to ~~deliver~~ timely elect a ~~notice (the “Settlement Notice”) of the relevant~~ Settlement Method ~~in respect~~ or specify the applicable Specified Dollar Amount will not constitute a Default or Event of Default. (v) The Company will have the right, exercisable at its election by sending notice of such ~~Conversion Date, the Issuer shall deliver such Settlement Notice in writing~~ exercise to the Holders (with a copy to the Trustee and the Conversion ~~Agent (if other than~~ Agent), to irrevocably fix the ~~Trustee) no later than the close~~ Settlement Method that will apply to all conversions of ~~business on the Trading Day immediately following the relevant~~ Notes with a Conversion Date ~~(or~~that occurs on or after the date such notice is sent to Holders, ~~in the case of any conversions for which the relevant Conversion Date occurs~~ provided that (x) ~~after~~ such Settlement Method must be a Settlement Method that the ~~date~~ Company is then permitted to elect (for the avoidance of ~~issuance~~ doubt, including pursuant to, and subject to, the other provisions of ~~a Redemption Notice~~ this Section 13.02(a)); (y) no such irrevocable election will affect any Settlement Method theretofore elected (or deemed to be elected) with respect to ~~the Notes and prior~~ any Note pursuant to the ~~related Redemption Date~~other provisions of this Section 13.02(a); and (z) upon any such irrevocable election, ~~in such Redemption Notice or (y) on or after November 15, 2025, no later than November 15, 2025). If~~ the ~~Issuer does not elect a~~ Default Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Issuer shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to such conversion and the Issuer 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 Issuer 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 will automatically be deemed to be ~~$1,000~~set to the Settlement Method so fixed. Such notice, if sent, must set forth the applicable Settlement Method and expressly state that the election is irrevocable and applicable to all conversions of Notes with a Conversion Date that occurs on or after the date such notice is sent to Holders. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(j) (it being understood, however, that the Company may nonetheless choose to execute such an amendment at its option). (ivvi) ~~The cash~~If the Company changes the Default Settlement Method pursuant to the proviso to the definition of such term or irrevocably fixes the Settlement Method pursuant to Section 13.02(a)(v), ~~shares of Common Stock~~ then the Company will either post the Default Settlement Method or ~~combination of cash and shares of Common Stock~~ fixed Settlement Method, as applicable, on its website or disclose the same in ~~respect of~~ a Current Report on Form 8-K (or any ~~conversion of Notes (~~successor form) that is filed with the ~~“Settlement Amount”) shall be computed as follows:~~SEC. (Ab) ~~if the Issuer elects~~ Subject to ~~satisfy its Conversion Obligation in respect of such conversion by Physical Settlement~~Section 13.03(b) and Section 13.07(a), the ~~Issuer shall deliver to the converting Holder~~ type and amount of consideration due in respect of each $1,000 principal amount of ~~Notes being~~ a Note to be converted will be determined as follows: (i) if Physical Settlement applies to such conversion, subject to Section 13.02(k), a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date ~~(and cash in lieu of fractional shares as provided herein)~~for such conversion; (Bii) if ~~the Issuer elects~~ Cash Settlement applies to ~~satisfy its Conversion Obligation in respect of~~ such ~~conversion by Cash Settlement~~conversion, ~~the Issuer 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 VWAP Trading Day in the ~~40 consecutive Trading Days during the related~~ Observation ~~Period~~Period for such conversion; ~~and~~or (Ciii) if ~~the Issuer elects~~ Combination Settlement applies to such conversion, consideration consisting, subject to Section 13.02(k), of (~~or is deemed to have elected~~x) ~~to satisfy its Conversion Obligation in respect~~ a number of ~~such conversion by Combination Settlement, the Issuer shall pay or deliver, as the case may be, in respect~~ shares of ~~each $1,000 principal amount of Notes being converted, a Settlement Amount~~ Common Stock equal to the sum of the Daily ~~Settlement~~ Share Amounts for each VWAP Trading Day in the Observation Period for such conversion; and (y) an amount of cash equal to the sum of the ~~40 consecutive~~ Daily Cash Amounts for each VWAP Trading ~~Days during the related~~ Day in such Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Issuer 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 Stock, the Issuer 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 Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (bc) Subject to Section ~~14.02(e~~13.02(f), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the ~~procedures of the Depositary~~ Applicable Procedures in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date ~~to which such Holder is not entitled~~ as set forth in Section ~~14.02(h~~13.02(i) and, if required, pay all transfer and similar taxes, if any ~~taxes payable~~ as ~~described~~ provided in ~~Section 14.02(d~~Sections 13.02(e) or ~~Section 14.02(e)~~ (~~and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights)~~ f), and (ii) in the case of a Physical Note or when required by Applicable Procedures in effect at that time in the case of a Global Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent ~~or by facsimile~~ and state in writing therein the principal amount of Notes to be converted (which must be in an Authorized Denomination) 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 Obligation to be registered, (2) surrender such Notes, duly endorsed to the ~~Issuer~~ Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer ~~documents~~ documents, (4) if required, pay all transfer or similar taxes and (45) if required, pay funds equal to interest payable on the next Interest Payment Date ~~to which such Holder is not entitled~~ as set forth in Section ~~14.02(h) and any taxes payable as described in Section 14.02(d) or Section 14.02(e~~13.02(i). The ~~Trustee (and if different, the~~ Conversion ~~Agent)~~ Agent shall notify the ~~Issuer~~ Company of any conversion pursuant to this Article ~~14 on the Conversion Date for such conversion~~13. 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 ~~Issuer~~ Company in respect of such Notes and ~~has~~ not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~15.03~~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 (to the extent permitted by the applicable rules of the Depositary, in the case of Global Notes) be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (cd) A Except as provided in Section 13.03(b) and Section 13.07(a), upon conversion of any Note, the Company will pay or deliver, as applicable, the consideration due upon conversion of any Note as follows: (i) if Cash Settlement or Combination Settlement applies to such conversion, on or before the second Business Day immediately after the last VWAP Trading Day of such Observation Period; and (ii) if Physical Settlement applies to such conversion, on or before the second Business Day immediately after such Conversion Date; provided, however, that if Physical Settlement applies to the conversion of any Note with a Conversion Date that is after the Regular Record Date immediately before the Maturity Date, then, solely for purposes of such conversion, the Company will pay or deliver, as applicable, the consideration due upon such conversion no later than the Maturity Date and the Conversion Date will be deemed to be the second Business Day immediately before the Maturity Date. Subject to Section 13.02(i) and Section 13.02(j), a 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 (bc) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Issuer 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 Issuer elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer 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 shares of Common Stock are due to converting Holders, the ~~Issuer~~ Company shall issue or cause to be issued, and deliver to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common Stock to which such Holder shall be entitled in satisfaction of the ~~Issuer~~Company’s Conversion Obligation. (de) In case any Note shall be surrendered for partial conversion, the ~~Issuer~~ Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in ~~authorized denominations~~ 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 Issuer 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~~ in connection with such partial conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (ef) If a Holder submits a Note for conversion, the ~~Issuer~~ Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue or delivery of any shares of Common 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 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. (fg) Except as provided in Section ~~14.04~~13.04, no adjustment shall be made for dividends on any shares ~~of Common Stock~~ issued upon the conversion of any Note as provided in this Article 1413. (gh) 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 ~~Issuer~~ Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (hi) 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes~~. The ~~Issuer~~Company’s settlement of the ~~full~~ Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but ~~not including~~excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~not including~~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 Common 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~~ Close of ~~business~~ Business on a Regular Record Date, Holders of such Notes as of the ~~close~~ Close of ~~business~~ Business on such Regular Record Date ~~shall~~ 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~~ after the ~~close~~ Close of ~~business~~ Business on any 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 such interest 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 ~~Issuer~~ Company has specified a Redemption Date that is after a Regular Record Date and ~~on or~~ prior to the Business Day immediately following the ~~date on which~~ corresponding Interest Payment Date and the ~~corresponding interest payment is made~~conversion occurs after such Regular Record Date and prior to such Interest Payment Date; (3) if the ~~Issuer~~ 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 ~~date on which~~ corresponding Interest Payment Date and the ~~corresponding interest payment is made~~conversion occurs after such Regular Record Date and prior to the Business Day immediately following such Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record 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 such Redemption Date, as applicable, regardless of whether their Notes have been converted following such Regular Record Date. (ij) The Person in whose name the certificate for (or other evidence representing) any shares of Common Stock delivered upon conversion is registered shall be ~~deemed to be the holder~~ treated as a stockholder of record ~~of such shares~~ as of the ~~close~~ Close of ~~business~~ Business on the ~~relevant~~ related Conversion Date (in the case of Physical Settlement) or the last VWAP Trading Day of the relevant Observation Period (in the case of 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 as of the time immediately prior to the close of business on the Conversion Date~~conversion. (jk) The ~~Issuer~~ Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of ~~delivering~~ any fractional share of Common Stock issuable upon conversion based on (i) the Daily VWAP ~~for~~ on 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 (ii) ~~or based on~~ the Daily VWAP ~~for~~ on the last VWAP Trading Day of the ~~relevant~~ applicable Observation ~~Period (~~Period, in the case of Combination Settlement). For each Note surrendered for conversion, if the Issuer has elected (or is deemed to have elected) Combination Settlement, the full number of 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 shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Sources: Indenture (Pacira BioSciences, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~14.02, Section 14.03(b)~~ 14.02 and Section ~~14.07(a~~14.06(a), upon conversion of any Note, the ~~Issuer~~ 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 Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02. (i) All conversions for which the relevant Conversion ~~Date~~ Dates occurs (x) on or after November 15, ~~2025, and all conversions for which~~ 2027 shall be settled using the ~~relevant Conversion Date occurs after the Issuer’s issuance of~~ same Settlement Method or (y) during a Redemption ~~Notice with respect to the Notes and prior to the related Redemption Date,~~ Period shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs ~~after the Issuer’s issuance of~~ during a Redemption ~~Notice with respect to the Notes but prior to the related Redemption Date~~ Period and any conversions for which the relevant Conversion Date occurs on or after November 15, ~~2025~~2027, the ~~Issuer~~ Company shall use the same Settlement Method for all conversions ~~with~~ occurring on the same Conversion Date, but the ~~Issuer~~ 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~~Date (or in the case of any conversions occurring (x) during a Redemption Period or (y) on or after November 15, 2027), the ~~Issuer~~ Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion ~~Date~~Date (or such period, as the case may be), the ~~Issuer~~ Company shall deliver such Settlement Notice ~~in writing~~ to ~~the Holders with a copy to~~ converting Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Scheduled Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions ~~for which the relevant Conversion Date occurs~~ occurring (x) ~~after the date of issuance of~~ during a Redemption ~~Notice with respect to the Notes and prior to the related Redemption Date~~Period, in such Redemption ~~Notice~~ Notice, or (y) on or after November 15, ~~2025~~2027, no later than the close of business on Scheduled Trading Day immediately preceding November 15, ~~2025~~2027) (in each case, the “Settlement Method Election Deadline”). If the ~~Issuer~~ Company does not timely elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the ~~Issuer~~ Company shall no longer have the right to elect Cash Settlement or ~~Physical~~ Combination Settlement ~~with respect to~~ for such ~~conversion~~ Conversion Date or during such period and the ~~Issuer~~ 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 ~~Issuer~~ 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, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to November 15, 2027, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of at least $1,000 for all Conversion Dates occurring subsequent to delivery of such notice. If the Company irrevocably elects Combination Settlement with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above a specific amount, the Company will, after the date of such election, inform Holders converting their Notes, the Trustee and the Conversion Agent (if other than the Trustee) of such Specified Dollar Amount no later than the relevant Settlement Method Election Deadline, or, if the Company does not timely notify Holders, the Trustee and the Conversion Agent (if other than the Trustee), such Specified Dollar Amount will be the specific amount set forth in the Settlement Notice or, if no specific amount was set forth in the Settlement Notice, such Specified Dollar Amount will be $1,000 per $1,000 principal amount of Notes. The irrevocable election will apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such notice; provided, however, that no such election will affect any settlement method theretofore elected (or deemed to be elected) with respect to any Note. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes. However, the Company may nonetheless choose to execute such an amendment at its option. If the Company irrevocably fixes the Settlement Method pursuant to this Section 14.02(a)(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 Stock or combination of cash and shares of Common Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the ~~Issuer~~ 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 Stock equal to the Conversion Rate in effect on the Conversion ~~Date (and cash in lieu of fractional shares as provided herein)~~Date; (B) if the ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the ~~Issuer~~ 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 40 30 consecutive Trading Days during the related Observation Period; and (C) if the ~~Issuer~~ Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the ~~Issuer~~ 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 40 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 ~~Issuer~~ 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 Stock, the ~~Issuer~~ 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 Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (~~i) in~~ 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 14.02(h) and ~~any taxes payable as described in Section 14.02(d) or Section 14.02(e)~~ (~~and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) and (ii) in~~ 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 ~~or by facsimile~~ 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 Obligation to be registered, (2) surrender such Notes, duly endorsed to the ~~Issuer~~ 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 14.02(h~~) and any taxes payable as described in Section 14.02(d) or Section 14.02(e~~). The Trustee (~~and~~ and, if different, the Conversion Agent) shall notify the ~~Issuer~~ Company of any conversion pursuant to this 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 ~~Issuer~~ Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with 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. (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 ~~14.03(b) and Section 14.07(a~~14.06(a), the ~~Issuer~~ 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 ~~Issuer~~ Company elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer shall deliver the consideration due in respect of the Conversion Obligation on the Maturity Date)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 Stock are due to a converting ~~Holders~~Holder, the ~~Issuer~~ Company shall issue or cause to be issued, and deliver to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common Stock to which such Holder shall be entitled in satisfaction of the ~~Issuer~~Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the ~~Issuer~~ Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the ~~Issuer~~ 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 ~~Issuer~~ Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common 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~~ such tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common 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 ~~14.04~~14.03, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The ~~Issuer~~ 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes~~. The ~~Issuer~~Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but ~~not including~~excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~not including~~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 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 ~~shall~~ will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Issuer has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the date on which the corresponding interest payment is made; (3) if the Issuer 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 date on which~~ succeeding the corresponding ~~interest payment~~ Interest Payment Date; (3) if the Company has specified a Redemption Date that is ~~made~~after a Regular Record Date and on or prior to the second Scheduled Trading Day immediately succeeding the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, any Fundamental Change Repurchase Date or ~~any~~ Redemption ~~Date~~ Date, in each case, as described above, shall receive the full interest payment due on the Maturity Date or ~~such Redemption Date, as applicable,~~ 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 Stock delivered upon conversion is registered shall be ~~deemed to be the holder~~ treated as a stockholder of record ~~of such shares~~ as of the close of business on the relevant Conversion Date (in if the ~~case of~~ Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (in if the ~~case of~~ Company elects 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 as of the time immediately prior to the close of business on the Conversion Date~~conversion. (j) The ~~Issuer~~ Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common 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 Issuer has elected (or is deemed to have elected) Combination Settlement, the full number of 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 shares remaining after such computation shall be paid in cash.c

Appears in 1 contract

Sources: Indenture (Pacific Biosciences of California, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the Issuer 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 Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02.63 (i) All conversions ~~for which the relevant Conversion Date occurs~~ occurring on or after ~~November~~ March 15, ~~2025, and all conversions for which the relevant Conversion Date occurs after the Issuer’s issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date,~~ 2023 shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs ~~after the Issuer’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 ~~November~~ March 15, ~~2025~~2023, the ~~Issuer~~ Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the ~~Issuer~~ 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~~Date (or the period described in the third immediately succeeding set of parentheses, as the case may be), the ~~Issuer~~ Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion ~~Date~~Date (or such period, as the case may be), the ~~Issuer~~ Company shall deliver such Settlement Notice ~~in writing~~ to ~~the~~ converting Holders (with a copy to the Trustee and ~~the~~ Conversion ~~Agent (if other than the Trustee~~Agent) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs ~~(x) after~~ during the ~~date of issuance of a Redemption Notice with respect to the Notes~~ period from, and ~~prior to the related Redemption Date~~including, ~~in such Redemption Notice or (y) on or after November~~ March 15, ~~2025~~2023 until the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, no later than ~~November~~ the close of business on Business Day immediately preceding March 15, ~~2025~~2023). If the ~~Issuer~~ Company does not timely elect a Settlement ~~Method prior to the deadline set forth in the immediately preceding sentence~~Method, the ~~Issuer~~ Company shall no longer have the right to elect Cash Settlement or Physical Settlement ~~with respect to such conversion~~ and the ~~Issuer~~ 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 ~~Issuer~~ 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. (iv) The cash, shares of Common Stock or combination of cash and shares of Common Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed by the Company as follows: (A) if the ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the ~~Issuer~~ 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 Stock equal to the Conversion Rate in effect on the Conversion ~~Date (and cash in lieu of fractional shares as provided herein)~~Date; (B) if the ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the ~~Issuer~~ 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 40 50 consecutive Trading Days during the related Observation Period; and (C) if the ~~Issuer~~ Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the ~~Issuer~~ 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 40 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 ~~Issuer~~ 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 Stock, the ~~Issuer~~ 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 Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to 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 any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) 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 or by facsimile 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 Obligation to be registered, (2) surrender such Notes, duly endorsed to the Issuer 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 14.02(h) and any taxes payable as described in Section 14.02(d) or Section 14.02(e). The Trustee (and if different, the Conversion Agent) shall notify the Issuer of any conversion pursuant to this 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 Issuer in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with 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. (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 14.03(b) and Section 14.07(a), the Issuer 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 Issuer elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer 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 shares of Common Stock are due to converting Holders, the Issuer shall issue or cause to be issued, and deliver to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common Stock to which such Holder shall be entitled in satisfaction of the Issuer’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Issuer 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 Issuer 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 Issuer shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common 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 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 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Issuer 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes. The Issuer’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common 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 shall receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Issuer has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the date on which the corresponding interest payment is made; (3) if the Issuer 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 date on which the corresponding interest payment is made; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date or any Redemption Date shall receive the full interest payment due on the Maturity Date or such Redemption Date, as applicable, regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name any shares of Common Stock delivered upon conversion is registered shall be deemed to be the holder of record of such shares as of the close of business on the relevant Conversion Date (in the case of Physical Settlement) or the last Trading Day of the relevant Observation Period (in the case of 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 as of the time immediately prior to the close of business on the Conversion Date. (j) The Issuer shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common 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 Issuer has elected (or is deemed to have elected) Combination Settlement, the full number of 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 shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Sources: Indenture (Avaya Holdings Corp.)

Conversion Procedure; Settlement Upon Conversion. (a) ~~Subject to this Section 14.02,~~ Except as provided in Section 14.03(b) and Section 14.07(a), upon conversion of any Note, on the ~~Issuer~~ second Business Day immediately following the last Trading Day of the relevant Observation Period, 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 (~~a “~~Cash Settlement”), shares~~ Settlement Amount” equal to the sum of ~~Common Stock~~the Daily Settlement Amounts for each of the 20 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 Stock in accordance with subsection (ji) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02. (i) All conversions for which the relevant Conversion Date occurs ~~on or after November 15, 2025, and all conversions for which the relevant Conversion Date occurs~~ after the ~~Issuer~~Company’s issuance of a Notice of 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 February 1, 2027 shall be settled using the same ~~Settlement Method. (ii)~~ forms and amounts of consideration. Except for any conversions for which the relevant Conversion Date occurs after the ~~Issuer~~Company’s issuance of a Notice of 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 ~~November 15~~February 1, ~~2025~~2027, the ~~Issuer~~ Company shall use the same ~~Settlement Method~~ forms and amounts of consideration for all conversions with the same Conversion Date, but the ~~Issuer~~ Company shall not have any obligation to use the same ~~Settlement Method~~ forms and amounts with respect to conversions with different Conversion Dates~~. (iii)~~ . If, in respect of any Conversion ~~Date~~Date (or one of the periods described in the third immediately succeeding set of parentheses, as the case may be), the ~~Issuer~~ Company elects to ~~deliver~~ settle all or a ~~notice~~ portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cash in respect of such Conversion Date (or such period, as the case may be), the Company shall inform converting Holders through the Conversion Agent (with a copy to the Trustee if not the Conversion Agent) of such election (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date, the Issuer shall deliver such Settlement Notice in writing to the Holders with a copy to the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Trading Day immediately following the ~~relevant~~ related 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 ~~Notice~~ with respect to the Notes and prior to the related Redemption Date, in such Redemption Notice or (y) on or after ~~November 15~~February 1, ~~2025~~2027, no later than ~~November 15~~February 1, ~~2025~~2027) and the Company shall indicate in such Settlement Notice the percentage of each share issuable upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”). If the ~~Issuer~~ Company does not elect a ~~Settlement Method~~ Cash Percentage prior to the deadline set forth in the immediately preceding sentence, the ~~Issuer~~ Company shall no longer have the right to elect a Cash ~~Settlement or Physical Settlement with respect to such conversion~~ Percentage and the ~~Issuer~~ 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 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 Issuer 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. (iv) The cash, shares of Common Stock or combination of cash and delivering shares of Common Stock in respect of the remainder (other than cash in lieu of any ~~conversion~~ fractional share), if any, of ~~Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Issuer elects to satisfy~~ its Conversion Obligation in ~~respect~~ excess of ~~such conversion by Physical Settlement,~~ the ~~Issuer shall deliver to~~ aggregate principal portion of the ~~converting Holder in respect of each $1,000 principal amount of~~ Notes being converted ~~a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date (and cash in lieu of fractional shares~~ as ~~provided~~ set forth herein);. (Bii) if the Issuer elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Issuer 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 40 consecutive Trading Days during the related Observation Period; and (C) if the Issuer elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Issuer 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 The Daily Settlement Amounts ~~for each of~~ (if applicable), the ~~40 consecutive Trading Days during the related Observation Period. (v) The~~ Daily Net Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the ~~Issuer~~ Company promptly following the last ~~day~~ VWAP Trading Day of the related Observation Period. Promptly ~~after such~~ thereafter, and in any event within one Business Day of determination of the Daily Settlement Amounts, the Daily Net 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 Stock, the ~~Issuer~~ 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~~ and, if applicable, the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (bi) ~~Subject to Section 14.02(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 ~~interest~~ 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(h) and any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) and 14.02(g); and (ii) in To convert a Certificated Note, or when required by Applicable Procedures, 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 or by facsimile~~ 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 shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Issuer 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 ~~interest~~ 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 Special Interest payable on the next Special Interest Payment Date to which such Holder is not entitled as set forth in Section ~~14.02(h) and any taxes payable as described in Section 14.02(d) or Section 14.02(e~~14.02(g). The Trustee (and if different, the Conversion Agent) shall notify the ~~Issuer~~ Company of any conversion pursuant to this Article 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 Issuer 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 (or, in the case of a Global Note, has complied with the Applicable Procedures with respect to such a withdrawal) in accordance with the terms of Section 15.03. If a Holder has already delivered a Fundamental Change Repurchase Notice, such Holder’s right to withdraw such notice and convert the Notes that are subject to repurchase shall terminate at the close of business on the Business Day immediately preceding the relevant Fundamental Change Repurchase Date. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in ~~subsection (b~~Section 14.02(b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Issuer 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 Issuer elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer 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 shares of Common Stock are due to converting Holders, the ~~Issuer~~ Company shall issue or cause to be issued, and deliver ~~to the Conversion Agent or~~ to such Holder, or such Holder’s nominee or nominees, ~~certificates or~~ a book-entry transfer through the Depositary for the full number of shares of Common Stock to which such Holder shall be entitled in satisfaction of the ~~Issuer~~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 ~~Issuer~~ Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder ~~of the Note~~ so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the ~~Issuer~~ 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 ~~Issuer~~ Company shall pay any documentary, stamp or similar issue or transfer tax due on the ~~issue~~ issuance of any shares of Common Stock upon ~~conversion~~conversion of such Note, 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~~ facilitate the delivery of the certificates representing the shares of Common 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 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14. (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 ~~Issuer~~ 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~~Special Interest, if any, except as set forth in the paragraph below~~, and the Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes~~. The ~~Issuer~~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 ~~not including~~excluding, the relevant Conversion Date. As a result, accrued and unpaid ~~interest~~Special Interest, if any, to, but ~~not including~~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 Stock~~Notes, 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~~immediately preceding paragraph, 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~~ at the close of business on such ~~Regular~~ Special Interest Record Date shall receive the full amount of ~~interest~~ Special Interest, if any, payable on such Notes on the corresponding 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~~ any Special Interest payable on the Notes so ~~converted~~converted on the corresponding Special Interest Payment Date (regardless of whether the converting Holder was the Holder of record on the corresponding Special Interest Record Date); provided that no such payment ~~shall~~ need be ~~required~~ made: (~~1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2~~i) if the ~~Issuer~~ Notes are surrendered for conversion following the close of business on April 15, 2027; (ii) if the Company has specified a ~~Redemption~~ Fundamental Change Repurchase Date that is after a ~~Regular~~ Special Interest Record Date and on or prior to the Business Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made;~~ Special Interest Payment Date; (3iii) if the ~~Issuer~~ 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~~ second Scheduled Trading Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made~~Special Interest Payment Date; or or (4iv) to the extent of any ~~Defaulted Amounts~~overdue Special Interest, if any ~~Defaulted Amounts~~ overdue Special Interest exists at the time of conversion with respect to such ~~Note~~Notes. Therefore, for the avoidance of doubt, all Holders of record on April 15, 2027, or on the ~~Regular~~ Special Interest Record Date immediately preceding ~~the Maturity~~ any Fundamental Change Repurchase Date or any Redemption Date described in clause (ii) or (iii) above, as the case may be, shall receive and retain the full ~~interest payment~~ Special Interest payment, if any, due on the Maturity Date or ~~such Redemption Date, as applicable,~~ other applicable Special Interest Payment Date regardless of whether their Notes have been converted following April 15, 2027 or such ~~Regular~~ other Special Interest Record Date, as the case may be. (ih) The Person in whose name any shares of Common Stock delivered upon conversion is registered shall ~~be deemed to be~~ become the holder of record of such shares as of the close of business on the ~~relevant Conversion Date (in the case of Physical Settlement) or the~~ last VWAP Trading Day of the relevant Observation ~~Period (in the case of 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 Special Interest Record Date and the corresponding Special Interest Payment Date, the Holder of record as of ~~the time immediately prior to~~ the close of business on such Special Interest Record Date shall have the ~~Conversion~~ right to receive the Special Interest payable on such Special Interest Payment Date, in accordance with Section 14.02(g). (ji) The ~~Issuer~~ Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of ~~delivering~~ any fractional share of Common 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 Issuer has elected (or is deemed to have elected) Combination Settlement~~, the full number of 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, subject to the last paragraph of Section 14.02(b), any fractional shares 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”), arrange to have such Notes exchanged in lieu of conversion by a financial institution designated by the Company (the “Designated Financial Institution”). If the Company makes an Exchange Election, no later than the second Business Day immediately following the relevant Conversion Date, the Company must deliver (or cause the Conversion Agent to deliver), such Notes surrendered for conversion to the Designated Financial Institution for exchange in lieu of conversion. In order to accept any Notes surrendered for conversion, the Designated Financial Institution must agree to timely pay and deliver, as the case may be, in exchange for such Notes, cash up to the aggregate principal amount of such Notes and cash, shares of Common Stock or a combination of cash and shares of Common Stock, at the Company’s election, in respect of the remainder, if any, of the Conversion Obligation in excess of the aggregate principal amount of such Notes that would otherwise be due upon conversion as described in Section 14.02(a) (the “Conversion Consideration”). If the Company makes an Exchange Election, the Company shall, by the close of business on the Trading Day following the relevant Conversion Date, notify the Trustee, the Conversion Agent (if other than the Trustee) and Holder surrendering Notes for conversion in writing that the Company has made the Exchange Election and the Company shall notify the Designated Financial Institution of the type of Conversion Consideration to be paid and delivered, as the case may be, and the relevant deadline for delivery of the relevant Conversion Consideration due upon conversion. Any Notes exchanged by the Designated Financial Institution shall remain outstanding, subject to the Applicable Procedures. If the Designated Financial Institution agrees to accept any Notes for exchange but does not timely deliver the related Conversion Consideration, or if such Designated Financial Institution does not accept the Notes for exchange, the Company shall deliver the relevant Conversion Consideration as if the Company had not made an Exchange Election. The Company’s designation of a financial institution to which the Notes may be submitted for exchange does not require the financial institution to accept any Notes (unless the financial institution has separately made an agreement with the Company). The Company may, but shall not be obligated to, enter into a separate agreement with any Designated Financial In

Appears in 1 contract

Sources: Indenture (On Semiconductor Corp)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, on the ~~Issuer~~ 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”), shares~~ Settlement Amount” equal to the sum of ~~Common Stock~~the Daily Settlement Amounts for each of the 20 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 Stock in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~November~~ June 15, ~~2025,~~ 2030 and all conversions for which the relevant Conversion Date occurs ~~after the Issuer’s issuance of~~ during a Redemption ~~Notice with respect to the Notes and prior to the related Redemption Date,~~ Period shall be settled using the same ~~Settlement Method~~forms and proportions of consideration. (ii) Except for any conversions for which the relevant Conversion Date occurs on or after ~~the Issuer’s issuance of a Redemption Notice with respect to the Notes but prior to the related Redemption Date~~ June 15, 2030 and any conversions for which the relevant Conversion Date occurs ~~on or after November 15, 2025~~during a Redemption Period, the ~~Issuer~~ Company shall use the same ~~Settlement Method~~ forms and proportions of consideration for all conversions with the same Conversion Date, but the ~~Issuer~~ Company shall not have any obligation to use the same ~~Settlement Method~~ forms and proportions of consideration with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion ~~Date~~Date (or any conversions for which the relevant Conversion Date occurs during a Redemption Period or any conversions for which the relevant Conversion Date occurs on or after June 15, 2030), the ~~Issuer~~ 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~~Date (or such period, as the ~~Issuer shall deliver such Settlement Notice in writing~~ case may be) to ~~the Holders with a copy to~~ converting Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of (x) any conversions for which the relevant Conversion Date occurs ~~(x) after the date of issuance of~~ during a Redemption ~~Notice with respect to the Notes and prior to~~ Period, in the related Notice of Redemption ~~Date, in such Redemption Notice~~ or (y) any conversions of Notes for which the relevant Conversion Date occurs on or after ~~November~~ June 15, ~~2025~~2030, no later than ~~November~~ June 15, ~~2025~~2030) (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 ~~Issuer~~ Company does not ~~elect~~ timely make 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 ~~Issuer~~ Company shall no longer have the right to elect a Cash ~~Settlement or Physical Settlement~~ Percentage with respect to any conversion on such ~~conversion~~ Conversion Date or during such period, and the ~~Issuer~~ Company shall be deemed to have elected ~~Combination Settlement in~~ a Cash Percentage of 0% 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 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 Issuer 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~~conversion. (iv) The ~~cash, shares of Common Stock or combination of cash and shares of Common Stock in respect of any conversion of Notes (the “~~Daily Settlement ~~Amount”) shall be computed as follows: (A) if the Issuer elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement~~Amounts, the Issuer shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date (and cash in lieu of fractional shares as provided herein); (B) if the Issuer elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Issuer 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 40 consecutive Trading Days during the related Observation Period; and (C) if the Issuer elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Issuer 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 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 ~~Issuer~~ Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement ~~Amounts or~~ Amounts, Daily Net Settlement Amounts, the Daily Conversion Values~~, as the case may be~~, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the ~~Issuer~~ 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~~, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section 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 and, if required, pay funds equal to ~~interest~~ the Special Interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) ~~and any taxes payable as described in Section 14.02(d)~~ and, if required, pay all transfer or similar taxes, if any, pursuant to Section 14.02(e) (and ~~therefore~~ the exercise of such ~~Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its~~ conversion ~~rights~~rights shall be irrevocable) 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 ~~or by facsimile~~ 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 Obligation to be registered, (2) surrender such Notes, duly endorsed to the ~~Issuer~~ 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~~ any Special Interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and ~~any taxes payable as described in Section 14.02(d~~(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 ~~Issuer~~ Company of any conversion pursuant to this 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 ~~Issuer~~ Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with 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. (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 14.03(b) and Section 14.07(a), the Issuer 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 Issuer elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer 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 shares of Common Stock are due to a converting ~~Holders~~Holder, the ~~Issuer~~ Company shall issue or cause to be issued, and deliver ~~to the Conversion Agent or~~ to such Holder, or such Holder’s nominee or nominees, ~~certificates or a book-entry transfer through the Depositary for~~ the full number of shares of Common Stock to which such Holder shall be ~~entitled~~ entitled, in book-entry format through the Depositary, in satisfaction of the ~~Issuer~~Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the ~~Issuer~~ Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the ~~Issuer~~ 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 ~~Issuer~~ Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common 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 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 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The ~~Issuer~~ 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes~~. The ~~Issuer~~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 ~~not including~~excluding, the relevant Conversion Date. As a result, accrued and unpaid ~~interest~~Special Interest, if any, to, but ~~not including~~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 Stock, accrued and unpaid ~~interest~~ Special Interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a ~~Regular~~ Special Interest Record Date but prior to the open of business on the immediately following Interest Payment Date, Holders of such Notes as of the close of business on such ~~Regular~~ Special Interest Record Date ~~shall~~ will receive the full amount of ~~interest~~ Special Interest payable on such Notes on ~~the corresponding~~ such Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of business on any ~~Regular~~ Special 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~~ Special Interest 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 Special Interest Record Date); 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 ~~Issuer~~ Company has specified a ~~Redemption~~ Fundamental Change Repurchase Date that is after a ~~Regular~~ Special Interest Record Date and on or prior to the Business Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made~~Interest Payment Date; (3) if the ~~Issuer~~ 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~~ second Trading Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made;~~ Interest Payment Date or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record at the close of business on the ~~Regular~~ Special Interest Record Date immediately preceding the Maturity ~~Date or~~ Date, any Redemption Date and any Fundamental Change Repurchase Date described in clause (2) above shall receive the full ~~interest~~ Special Interest payment due on the Maturity Date or ~~such Redemption Date, as applicable,~~ 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~~ Special Interest Record Date. (i) The Person in whose name ~~any~~ the shares of Common Stock ~~delivered~~ shall be issuable upon conversion ~~is registered~~ shall be ~~deemed to be the holder~~ treated as a stockholder of record ~~of such shares~~ as of the close of business on the ~~relevant Conversion Date (in the case of Physical Settlement) or the~~ last Trading Day of the relevant Observation ~~Period (in the case of 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 as of the time immediately prior to the close of business on the Conversion Date~~conversion. (j) The ~~Issuer~~ Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common 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 ~~Issuer~~ Company has elected (or is deemed to have elected) ~~Combination Settlement~~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 ~~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 shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Sources: Indenture (Lyft, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), ) upon conversion of any Note, on the ~~Issuer~~ 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”), shares~~ Settlement Amount” equal to the sum of ~~Common Stock~~the Daily Settlement Amounts for each of the 20 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 Stock in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~November 15~~March 1, ~~2025,~~ 2030 and all conversions for which the relevant Conversion Date occurs ~~after the Issuer’s issuance of~~ during a Redemption ~~Notice with respect to the Notes and prior to the related Redemption Date,~~ Period shall be settled using the same ~~Settlement Method~~forms and proportions of consideration. (ii) Except for any conversions for which the relevant Conversion Date occurs on or after ~~the Issuer’s issuance of a Redemption Notice with respect to the Notes but prior to the related Redemption Date~~ March 1, 2030 and any conversions for which the relevant Conversion Date occurs ~~on or after November 15, 2025~~during a Redemption Period, the ~~Issuer~~ Company shall use the same ~~Settlement Method~~ forms and proportions of consideration for all conversions with the same Conversion Date, but the ~~Issuer~~ Company shall not have any obligation to use the same ~~Settlement Method~~ forms and proportions of consideration with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion ~~Date~~Date (or any conversions for which the relevant Conversion Date occurs during a Redemption Period or any conversions for which the relevant Conversion Date occurs on or after March 1, 2030), the ~~Issuer~~ 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~~Date (or such period, as the ~~Issuer shall deliver such Settlement Notice in writing~~ case may be) to ~~the Holders with a copy to~~ converting Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of (x) any conversions for which the relevant Conversion Date occurs ~~(x) after the date of issuance of~~ during a Redemption ~~Notice with respect to the Notes and prior to~~ Period, in the related ~~Redemption Date, in such~~ Redemption Notice or (y) any conversions of Notes for which the relevant Conversion Date occurs on or after ~~November 15~~March 1, ~~2025~~2030, no later than ~~November 15~~March 1, ~~2025~~2030) (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 ~~Issuer~~ Company does not ~~elect~~ timely make 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 ~~Issuer~~ Company shall no longer have the right to elect a Cash ~~Settlement or Physical Settlement~~ Percentage with respect to any conversion on such ~~conversion~~ Conversion Date or during such period, and the ~~Issuer~~ Company shall be deemed to have elected ~~Combination Settlement in~~ a Cash Percentage of 0% 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 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 Issuer 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~~conversion. (iv) The ~~cash, shares of Common Stock or combination of cash and shares of Common Stock in respect of any conversion of Notes (the “~~Daily Settlement ~~Amount”) shall be computed as follows: (A) if the Issuer elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement~~Amounts, the Issuer shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date (and cash in lieu of fractional shares as provided herein); (B) if the Issuer elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Issuer 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 40 consecutive Trading Days during the related Observation Period; and (C) if the Issuer elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Issuer 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 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 ~~Issuer~~ Company promptly following the last day of the Observation Period. Promptly after (and in any event within one Business Day following the last day of the Observation Period) such determination of the Daily Settlement ~~Amounts or~~ Amounts, Daily Net Settlement Amounts, the Daily Conversion Values~~, as the case may be~~, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the ~~Issuer~~ 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~~, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section 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 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 14.02(h) ~~and any taxes payable as described in Section 14.02(d)~~ and, if required, pay all transfer or similar taxes, if any, pursuant to Section 14.02(e) (and ~~therefore~~ the exercise of such ~~Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its~~ conversion ~~rights~~rights shall be irrevocable) and (ii) in the case of a Physical Note (or a Global Note processed outside of DTC) (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 ~~or by facsimile~~ 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 Obligation to be registered, (2) surrender such Notes, duly endorsed to the ~~Issuer~~ 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 ~~any taxes payable as described in Section 14.02(d~~(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 ~~Issuer~~ Company of any conversion pursuant to this 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 Repurchase Notice or Fundamental Change Repurchase Notice to the ~~Issuer~~ Company in respect of such Notes and has not validly withdrawn such Repurchase Notice or Fundamental Change Repurchase Notice in accordance with 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. (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 14.03(b) and Section 14.07(a), the Issuer 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 Issuer elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer 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 shares of Common Stock are due to a converting ~~Holders~~Holder, the ~~Issuer~~ Company shall issue or cause to be issued, and deliver ~~to the Conversion Agent or~~ to such Holder, or such Holder’s nominee or nominees, ~~certificates or a book-entry transfer through the Depositary for~~ the full number of shares of Common Stock to which such Holder shall be ~~entitled~~ entitled, in book-entry format through the Depositary, in satisfaction of the ~~Issuer~~Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the ~~Issuer~~ Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the ~~Issuer~~ 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 ~~Issuer~~ Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common 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 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 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The ~~Issuer~~ 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes~~. The ~~Issuer~~Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but ~~not including~~excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~not including~~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 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 ~~shall~~ will receive the full amount of interest payable on such Notes on ~~the corresponding~~ such Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so ~~converted~~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 close of business on the Regular Record Date immediately preceding the Maturity Date; (2) if for conversions following the ~~Issuer has specified a Redemption Date that is after a~~ Regular Record Date ~~and on or prior to~~ immediately preceding the ~~Business Day immediately following the date on which the corresponding interest payment is made~~Repurchase Date; (3) if the ~~Issuer~~ 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 ~~date~~ corresponding Interest Payment Date; (4) if the Company has specified a Redemption Date that is after a Regular Record Date and on ~~which~~ or prior to the second Trading Day immediately following the corresponding ~~interest payment is made;~~ Interest Payment Date or (45) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record at the close of business on the Regular Record Date immediately preceding the Maturity ~~Date or~~ Date, the Repurchase Date, any Redemption Date and any Fundamental Change Repurchase Date described in clause (3) above shall receive the full interest payment due on the Maturity Date, the Repurchase Date, the Fundamental Change Repurchase Date or ~~such~~ the Redemption ~~Date, as applicable,~~ Date in cash regardless of whether their Notes have been ~~converted~~ converted, redeemed and/or repurchased, as applicable, following such Regular Record Date. (i) The Person in whose name ~~any~~ the shares of Common Stock ~~delivered~~ shall be issuable upon conversion ~~is registered~~ shall be ~~deemed to be the holder~~ treated as a stockholder of record ~~of such shares~~ as of the close of business on the ~~relevant Conversion Date (in the case of Physical Settlement) or the~~ last Trading Day of the relevant Observation ~~Period (in the case of 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 as of the time immediately prior to the close of business on the Conversion Date~~conversion. (j) The ~~Issuer~~ Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common 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 ~~Issuer~~ Company has elected (or is deemed to have elected) ~~Combination Settlement~~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 ~~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 shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Sources: Indenture (Microchip Technology Inc)

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