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 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 the Company’s election, as set forth in this Section 14.02. (i) All conversions for which the relevant Conversion Date occurs on or after June 1, 2018 shall be settled using the same Settlement Method. (ii) Except for any conversions that occur on or after June 1, 2018 to the close of business on the Business Day immediately preceding the Maturity Date, the Company shall use the same Settlement Method for all conversions occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions that occur on different Conversion Days. (iii) If, in respect of any Conversion Date (or the period described in the third immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions occurring on or after June 1, 2018, no later than the close of business on the Business Day immediately preceding June 1, 2018). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. (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 Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the Converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common 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 (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be delivered by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 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. The 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. If any shares of Common Stock are due to converting Holders, the 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 Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common 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 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. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date; or (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date or any Fundamental Change Repurchase Date as described in the immediately preceding sentence shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common 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 on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP on the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of 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 (Move 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 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 ~~the Company’s~~ its election, as set forth in this Section 14.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~June 1~~December 15, ~~2018~~ 2024 shall be settled using the same Settlement Method. (ii) Except for any conversions ~~that occur~~ for which the relevant Conversion Date occurs on or after ~~June 1~~December 15, ~~2018 to the close of business on the Business Day immediately preceding the Maturity Date~~2024, the Company shall use the same Settlement Method for all conversions ~~occurring on~~ with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions ~~that occur on~~ with different Conversion ~~Days~~Dates. (iii) If, in respect of any Conversion Date (or the period ~~described in~~ beginning on, and including, December 15, 2024 and ending on, and including, the ~~third~~ second Business Day immediately ~~succeeding set of parentheses~~preceding the Maturity Date, as the case may be), the Company elects to deliver a notice (the “"Settlement Notice”") of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions ~~occurring~~ for which the relevant Conversion Date occurs on or after ~~June 1~~December 15, ~~2018~~2024, no later than ~~the close of business on the Business Day immediately preceding June 1~~December 15, ~~2018~~2024). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. (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 Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 40 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, ~~to the Converting Holder~~ in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 40 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the relevant Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and 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 (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile thereof) (a “"Notice of Conversion”") at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (~~and,~~ and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be ~~delivered~~ surrendered by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~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. ~~The~~ Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the ~~third~~ second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the ~~third~~ 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 Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s '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 Company’s 's Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s '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 '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 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. The Company’s '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 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 Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately ~~succeeding~~ following the corresponding Interest Payment Date; or (3) 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 Fundamental Change Repurchase Date as described in the immediately preceding sentence~~ shall receive the full interest payment due on the Maturity Date ~~or other applicable Interest Payment Date~~ 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~~ shall be issuable upon conversion ~~is registered~~ shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common 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 on for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP on for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected ~~(or is deemed to have elected)~~ Combination Settlement, the full number of shares that shall be 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) and Section 14.07(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common 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 ~~the Company’s~~ its election, as set forth in this Section 14.02. (i) All conversions ~~for which the relevant Conversion Date occurs~~ occurring on or after ~~June 1~~November 15, ~~2018~~ 2025, and all conversions of Notes called for redemption (or deemed called for redemption pursuant to ‎‎Section 14.01(b)(v)) occurring during a Redemption Period, shall be settled using the same Settlement Method. (ii) ~~Except~~ Prior to November 15, 2025, except for any conversions of Notes called for redemption (or deemed called for redemption pursuant to Section 14.01(b)(v)) that occur ~~on or after June 1~~during a Redemption Period, ~~2018~~ and subject to the ~~close~~ last paragraph of ~~business on the Business Day immediately preceding the Maturity Date~~‎Section 14.02(a)(iii), the Company shall use the same Settlement Method for all conversions occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions that occur on different Conversion ~~Days~~Dates. (iii) If, in respect of any Conversion Date (or one of the ~~period~~ periods described in the third immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of (x) any conversions ~~occurring~~ of Notes called for redemption (or deemed called for redemption pursuant to ‎Section 14.01(b)(v)) for which the relevant Conversion Date occurs during the related Redemption Period, in the related Redemption Notice or (y) any conversion of Notes for which the relevant Conversion Date occurs on or after ~~June 1~~November 15, ~~2018~~2025, no later than November 15, 2025) (in each case, the ~~close of business on the Business Day immediately preceding June 1, 2018~~“Settlement Method Election Deadline”). If the Company does not elect a Settlement Method prior to the ~~deadline set forth in the immediately preceding sentence~~relevant Settlement Method Election Deadline, the Company shall no longer have the right to elect ~~Cash~~ a Settlement Method with respect to any conversion on such Conversion Date or ~~Physical Settlement~~ during such period, and the Company shall be deemed to have elected the Default Settlement Method with respect to such conversion. If the Company elects Combination Settlement ~~in respect~~ (or is deemed to have elected Combination Settlement), but the Company does not timely notify the converting Holders of ~~its Conversion Obligation, and~~ the Specified Dollar Amount per $1,000 principal amount of Notes to be converted, such Specified Dollar Amount shall be ~~equal~~ deemed to be $1,000. ~~Such~~ Any Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar ~~Amount per $1,000 principal amount of Notes~~Amount. If By notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) prior to November 15, 2025, the Company ~~delivers a~~ may, from time to time, change the Default Settlement ~~Notice electing~~ Method. In addition, the Company may, by notice to the Holders of the Notes, the Trustee and Conversion Agent (if other than the Trustee) prior to November 15, 2025, irrevocably fix the Settlement Method to any Settlement Method that the Company is then permitted to elect (including Combination Settlement ~~in respect of its Conversion Obligation but does not indicate~~ with a Specified Dollar Amount per $1,000 principal amount of Notes ~~in such Settlement Notice,~~ 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), which shall apply to all conversions with a Conversion Date that is on or after the date the Company sends such notice. Concurrently with providing notice to the Holders of the Notes an election to change the Default Settlement Method or irrevocably fix the Settlement Method, the Company shall promptly issue a report on Form 8-K or press release announcing that the Company has elected to change the Default Settlement Method or irrevocably fix the Settlement Method. If the Company elects to change the Default Settlement Method, and/or 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 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, the Trustee and the Conversion Agent of the Specified Dollar Amount, such Specified Dollar Amount shall be the specific amount set forth in the election notice or, if no specific amount was set forth in the election notice, such Specified Dollar Amount shall be deemed to be $~~1,000~~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(l). 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 Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder ~~in respect of each $1,000 principal amount of Notes being converted~~ a number of shares of Common Stock equal to the product of (1) the aggregate principal amount of Notes to be converted, divided by $1,000, and (2) the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 40 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the ~~Converting~~ converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 40 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common 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 (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be delivered by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 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. The 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. If any shares of Common Stock are due to converting Holders, the 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 Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common 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 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. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date; or (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date or any Fundamental Change Repurchase Date as described in the immediately preceding sentence shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common 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 on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP on the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of 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 (Expedia 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 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 ~~the Company’s~~ its election, as set forth in this Section 14.02. (i) All conversions ~~for which the relevant Conversion Date occurs~~ occurring on or after ~~June~~ December 1, ~~2018~~ 2015 shall be settled using the same Settlement Method. (ii) ~~Except for any~~ For all conversions ~~that occur on or after June~~ prior to December 1, ~~2018 to the close of business on the Business Day immediately preceding the Maturity Date~~2015, the Company shall use the same Settlement Method for all conversions occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions that occur on different ~~Conversion~~ Trading Days, subject to clause (i) above. (iii) ~~If,~~ The Company may elect a Settlement Method in respect of any Conversion Date on or prior to December 1, 2015 (or for all Conversion Dates occurring during the period ~~described in~~ beginning on, but excluding, December 1, 2015 and ending on, and including, the ~~third~~ Business Day immediately ~~succeeding set of parentheses~~preceding the Maturity Date, as the case may be), ~~the Company elects to deliver~~ by delivering a notice (the “Settlement Notice”) to converting Holders of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be~~), the Company,~~ ) through the ~~Trustee, shall deliver such Settlement Notice to converting Holders~~ Trustee no later than the close of business on the second Trading Day immediately following the ~~relevant~~ related Conversion Date (or, ~~in the case of any conversions occurring on or after June 1, 2018~~for such period, no later than ~~the close of business on the Business Day immediately preceding June~~ December 1, ~~2018~~2015). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar ~~Amount per $1,000 principal amount of Notes~~Amount. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount ~~per $1,000 principal amount of Notes~~ in such Settlement Notice, the Specified Dollar Amount ~~per $1,000 principal amount of Notes~~ shall be deemed to be $1,000. The Company may, prior to December 1, 2015, at its option irrevocably elect in a global Settlement Notice a particular Specified Dollar Amount for all conversions subsequent to such Settlement Notice. (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 Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder ~~in respect of each $1,000 principal amount of Notes being converted~~ a number of shares of Common Stock equal to (1) the aggregate principal amount of Notes to be converted, divided by $1,000, multiplied by (2) the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 30 consecutive Trading Days during the related ~~Observation~~ Conversion Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, ~~to the Converting Holder~~ in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 30 consecutive Trading Days during the related ~~Observation~~ Conversion Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the ~~Observation~~ Conversion Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of ~~delivering~~ any fractional ~~share of Common Stock~~share, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of ~~delivering~~ fractional shares of Common 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 payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (~~and,~~ and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be ~~delivered~~ surrendered by a Holder thereof if such ~~Holder~~ ▇▇▇▇▇▇ has also delivered a ~~Fundamental Change Repurchase~~ Purchase Exercise Notice to the Company in respect of such Notes and ~~has~~ not validly withdrawn such ~~Fundamental Change Repurchase~~ Purchase Exercise Notice in accordance with Section 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. The Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation ~~on the third~~ (i) three Business ~~Day~~ Days immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or ~~on the third~~ (ii) three Business ~~Day~~ Days immediately following the last ~~Trading Day~~ day of the ~~relevant Observation~~ Conversion Period, in the case of any other Settlement Method; provided, however, that if prior to the Conversion Date for any converted Notes the Common Stock has been replaced by Reference Property consisting solely of cash, the Company shall pay the conversion consideration due in respect of conversion on the third Trading Day immediately following the related Conversion Date, and, notwithstanding the foregoing, no Conversion Period shall apply to those conversions. If any shares of Common Stock are due to converting Holders, the 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 Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any ~~documentary, stamp or similar issue or~~ transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common 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 Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon ~~conversion~~conversion of a Note, a Holder shall not receive any ~~separate~~ additional cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the ~~full~~ Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the ~~relevant~~ Conversion Date. ~~As a result~~Therefore, 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 Holders of Notes ~~are converted after~~ as of the close of business on a Regular Record ~~Date, Holders of such Notes as of the close of business on such Regular Record~~ Date will receive the full ~~amount~~ payment of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the ~~conversion~~conversion of such Notes at any time after the close of business on the such Regular Record Date. Notes surrendered for conversion ~~during the period from~~ by a Holder after the close of business on any Regular Record Date but prior to the open of business on the immediately following Interest Payment Date must be accompanied by ~~funds~~ payment of an amount equal to the ~~amount of~~ interest that will be payable on the Notes so converted; provided that no such payment shall be required (1) ~~for conversions following the Regular Record Date immediately preceding the Maturity Date; (2)~~ if the Company has specified a Fundamental Change ~~Repurchase~~ Purchase Date that is after a Regular Record Date and on or prior to the ~~Business Day immediately succeeding the~~ corresponding Interest Payment Date; (2) with respect to any Notes surrendered for conversions following the Regular Record Date immediately preceding the Maturity Date; or (3) 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 Fundamental Change Repurchase Date as described in the immediately preceding sentence shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant ~~Observation~~ Conversion Period (if the 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. (j) The 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 on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP 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 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~~ applicable Conversion Period and any fractional shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Sources: Indenture (Akorn Inc)

Conversion Procedure; Settlement Upon Conversion. (a) ~~Subject to this~~ Except as provided in Section ~~14.02, Section 14.03(b~~14.03(a) and Section 14.07(a), upon conversion of any Note, on the second Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall ~~pay~~ satisfy its Conversion Obligation by paying or ~~deliver~~delivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, ~~cash (~~a “~~Cash Settlement”), 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 the Company’s election, as set forth in this Section 14.02. (i) All conversions of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period, and all conversions for which the relevant Conversion Date occurs on or after ~~June 1~~February 15, ~~2018~~ 2026, shall be settled using the same ~~Settlement Method~~forms and amounts of consideration. (ii) Except for any conversions ~~that occur~~ of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period, and any conversions for which the relevant Conversion Date occurs on or after ~~June 1~~February 15, ~~2018 to the close of business on the Business Day immediately preceding the Maturity Date~~2026, the Company shall use the same ~~Settlement Method~~ forms and amounts of consideration for all conversions ~~occurring on~~ with the same Conversion Date, but the Company shall not have any obligation to use the same ~~Settlement Method~~ forms and amounts of consideration with respect to conversions ~~that occur on~~ with different Conversion ~~Days~~Dates. (iii) If, in respect of any Conversion Date (or any conversions of Called Notes for which the ~~period described in~~ relevant Conversion Date occurs during the ~~third immediately succeeding set of parentheses~~related Redemption Period or any conversions for which the relevant Conversion Date occurs on or after February 15, ~~as the case may be~~2026), the Company elects to ~~deliver~~ settle all or a ~~notice (the “Settlement Notice”)~~ portion of its Conversion Obligation in excess of the ~~relevant Settlement Method~~ principal portion of the Notes being converted in cash in respect of such Conversion Date (or such period, as the case may be), the ~~Company~~Company shall inform converting Holders, ~~through~~ the ~~Trustee, shall deliver~~ Trustee and the Conversion Agent of such election (the “Settlement ~~Notice to converting Holders~~ Notice”) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of (A) any conversions ~~occurring~~ of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period, in the related Notice of Redemption or (B) any conversions of Notes for which the relevant Conversion Date occurs on or after ~~June 1~~February 15, ~~2018~~2026, no later than February 15, 2026) and the ~~close~~ Company shall indicate in such Settlement Notice the percentage of ~~business on~~ the ~~Business Day immediately preceding June 1, 2018~~Conversion Obligation in excess of the principal portion of the Notes being converted that shall be paid in cash (the “Cash Percentage”). If the Company does not elect a ~~Settlement Method~~ Cash Percentage prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect a Cash ~~Settlement~~ Percentage with respect to any conversion on such Conversion Date or ~~Physical Settlement~~ during such period, and the 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 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~~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 Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement~~Amounts, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the Converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 consecutive Trading Days during the related Observation Period. (v) The Daily Net Settlement Amounts (if applicable) and the Daily Conversion Values ~~(if applicable)~~ shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts, the Daily Net Settlement Amounts or (if applicable) and the Daily Conversion ~~Values, as the case may be,~~ Values and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts, the Daily Net Settlement Amounts or (if applicable) and the Daily Conversion ~~Values, as the case may be,~~ Values and the amount of cash payable in lieu of delivering any fractional 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 (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a ~~facsimile~~ facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (~~and,~~ and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No ~~Notice of Conversion with respect to any~~ Notes may be ~~delivered~~ surrendered for conversion by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 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. The 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. If any shares of Common Stock are due to a converting ~~Holders~~Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, ~~certificates or a book-entry transfer through the Depositary for~~ the full number of shares of Common Stock to which such Holder shall be ~~entitled~~ entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common 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 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. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of ~~Notes into a combination of cash and shares of Common 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 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 Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately ~~succeeding~~ following the corresponding Interest Payment Date; or (34) 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 (i) the Maturity Date, (ii) any Redemption Date or described in clause (2) of the immediately preceding sentence and (iii) any Fundamental Change Repurchase Date as described in clause (3) of the immediately preceding ~~sentence~~ sentence, as applicable, shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name ~~the certificate for~~ any shares of Common Stock ~~delivered~~ shall be issuable upon conversion ~~is registered~~ shall be treated as a stockholder of record as of the close of business on the ~~relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the~~ last Trading Day of the relevant Observation ~~Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be~~Period. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common 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 ~~on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP on~~ for the last Trading Day of the relevant Observation ~~Period (in the case of Combination Settlement)~~Period. For each Note surrendered for conversion, ~~if the Company has elected (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 (John Bean Technologies CORP)

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 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 ~~the Company’s~~ its election, as set forth in this Section ~~14.02~~13.02. (i) All conversions ~~for which the relevant Conversion Date occurs~~ occurring on or after ~~June 1~~August 15, ~~2018~~ 2017 shall be settled using the same Settlement Method. (ii) ~~Except for any conversions that occur on or after June 1~~Prior to August 15, ~~2018 to the close of business on the Business Day immediately preceding the Maturity Date~~2017, the Company shall use the same Settlement Method for all conversions occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions that occur on different Conversion ~~Days~~Dates. (iii) If, in respect of any Conversion Date (or any conversions of Notes occurring during the period ~~described in~~ beginning on, and including, August 15, 2017 and ending on, and including, the ~~third~~ Scheduled Trading Day immediately ~~succeeding set of parentheses~~preceding the Maturity Date, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the ~~Trustee~~Securities Administrator, shall deliver such Settlement Notice to converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions occurring on or after ~~June 1~~August 15, ~~2018~~2017, no later than ~~the close of business on the Business Day immediately preceding June 1~~August 15, ~~2018~~2017). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall ~~no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall~~ be deemed to have elected ~~Combination~~ 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~~Amount. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount ~~per $1,000 principal amount of Notes~~ in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. (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 Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted ~~cash in~~ an amount in cash equal to the sum of the Daily Conversion Values for each of the 50 20 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, ~~to the Converting Holder~~ in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 20 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or 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 Company shall notify in writing the Securities Administrator, the Trustee and the Conversion Agent (if other than the ~~Trustee~~Securities Administrator) of 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 Securities Administrator, the Trustee and the Conversion Agent (if other than the ~~Trustee~~Securities Administrator) 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 (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~~ applicable Corporate Trust Office 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 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~~13.02(h). The ~~Trustee~~ Securities Administrator (~~and~~or, if different, the Conversion Agent) shall notify the 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 ~~delivered~~ surrendered by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the ~~Company~~ Paying Agent 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. ~~The~~ Except as provided in Section 13.03(b) and in Section 13.07, the 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. If any shares of Common Stock are due to converting Holders, the 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 portion of the Company’s Conversion ~~Obligation~~Obligation that consists of shares of Common Stock, and, on or prior to such issuance, the Company shall give the Conversion Agent notice of the number of shares of Common Stock being so issued and the method by which the issuance shall take place. Any required funds due to a converting Holder in connection with a Cash Settlement or Combination Settlement shall be delivered to the Paying Agent in accordance with the procedures set forth in Section 4.04. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the ~~Trustee~~ Securities Administrator shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the ~~Company~~ Company, the Securities Administrator or Trustee, with payment by the converting Holder of a sum sufficient to cover any ~~documentary, stamp or similar issue or~~ transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the ~~Trustee~~ Securities Administrator 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~~Note. (g) Upon the conversion of an interest in a Global Note, the ~~Trustee,~~ Securities Administrator or the Custodian at the direction of the ~~Trustee~~Securities Administrator, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the ~~Trustee~~ Securities Administrator in writing of any conversion of Notes effected through any Conversion Agent other than the ~~Trustee~~Securities Administrator. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the ~~full~~ Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the ~~relevant~~ Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the ~~relevant~~ Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately ~~succeeding~~ following the corresponding Interest Payment Date; or (3) 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 Fundamental Change Repurchase Date as described in the immediately preceding sentence shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be, in each case solely for the purpose of receiving or participating in any dividend, distribution, issuance, share split or combination, tender or exchange offer or any other event that would lead to a Conversion Rate adjustment as described in Section 13.04. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common 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 on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP on the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected ~~(or is deemed to have elected)~~ Combination Settlement, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the ~~relevant~~ applicable Observation Period and any fractional shares remaining after such computation shall be paid in cash. (k) Notwithstanding anything to the contrary herein, no Holder shall be entitled to receive shares of Common Stock upon conversion to the extent (but only to the extent) that following such receipt such converting Holder would be, directly or indirectly, a “beneficial owner” (within the meaning of Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) of more than 5.0% of the shares of Common Stock outstanding at such time (the “Limitation”). Any purported delivery of shares of Common Stock upon conversion of Notes shall be void and have no effect to the extent (but only to the extent) that such delivery would result in the converting Holder becoming the beneficial owner of more than the Limitation. If any delivery of shares of Common Stock owed to a Holder upon conversion of Notes is not made, in whole or in part, as a result of the Limitation, the Company’s obligation to make such delivery shall not be extinguished and the Company shall deliver such shares as promptly as practicable after any such converting Holder gives notice to the Company that following such delivery such converting holder would not be the beneficial owner of more than 5.0% of the shares of Common Stock outstanding at such time. The Limitation shall no longer apply following the effective date of any Fundamental Change.

Appears in 1 contract

Sources: Indenture (BlackRock Kelso Capital 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 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 ~~the Company’s~~ its election, as set forth in this Section 14.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~June 1~~November 15, ~~2018~~ 2021 shall be settled using the same Settlement Method. (ii) Except for any conversions ~~that occur~~ for which the relevant Conversion Date occurs on or after ~~June 1~~November 15, ~~2018~~ 2021, and except to the ~~close of business on~~ extent the ~~Business Day immediately preceding the Maturity Date~~Company elects Physical Settlement to apply pursuant to Section 14.01(b)(ii), the Company shall use the same Settlement Method for all conversions ~~occurring on~~ with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions ~~that occur on~~ with different Conversion ~~Days~~Dates. (iii) If, in respect of any Conversion Date (or one of the ~~period~~ periods described in the third immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions ~~occurring~~ of any Notes (x) for which the relevant Conversion Date occurs on or after ~~June 1~~November 15, ~~2018~~2021, no later than the close of business on the Business Day immediately preceding ~~June 1~~November 15, ~~2018~~2021 or (y) for which the Company has irrevocably elected Physical Settlement pursuant to Section 14.01(b)(ii), in the related notice described therein). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. (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 Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 40 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, ~~to the Converting Holder~~ in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 40 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common 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 (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (~~and,~~ and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be ~~delivered~~ surrendered by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 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. ~~The~~ Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the ~~third~~ second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the ~~third~~ 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 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 Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the ~~issue~~ issuance of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common 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 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. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common Stock, any accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of any interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately ~~succeeding~~ following the corresponding Interest Payment Date; or (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts ~~exists~~ exist at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record as of the close of business on the Regular Record Date immediately preceding the Maturity Date or ~~any~~ a Fundamental Change Repurchase Date ~~as described in the immediately preceding sentence~~ shall receive the full interest payment due on the Maturity Date or ~~other applicable Interest Payment~~ the Fundamental Change Repurchase Date in cash regardless of whether their Notes have been converted following such Regular Record Date, and the converting Holder shall not be required to make a corresponding payment. (i) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common 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 on for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP on for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Sources: Indenture (Fortive Corp)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common 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 ~~the Company’s~~ its election, as set forth in this Section 14.02. (i) All conversions (i) of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period, (ii) for which the relevant Conversion Date occurs on or after ~~June 1~~September 15, ~~2018~~ 2027, or (iii) for which the relevant Conversion Date occurs during the period after delivery to the Holders of a Certain Distributions Notification until the related Certain Distributions Conversion Period End Date, shall be settled using the same Settlement Method. (ii) Except for any such conversions ~~that occur~~ for which the relevant Conversion Date occurs (i) during a Redemption Period, (ii) on or after ~~June 1~~September 15, ~~2018~~ 2027, or (iii) during the period after delivery to the ~~close~~ Holders of ~~business on~~ a Certain Distributions Notification until the ~~Business Day immediately preceding the Maturity~~ related Certain Distributions Conversion Period End Date, the Company shall use the same Settlement Method for all conversions ~~occurring on~~ with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions ~~that occur on~~ with different Conversion ~~Days~~Dates. (iii) ~~If,~~ (A) If the Company elects a Settlement Method in respect of ~~any~~ a Conversion Date (or one of the ~~period~~ periods described in the ~~third~~ fourth immediately succeeding set of parentheses, as the case may be), the Company ~~elects to~~ shall deliver a notice in writing (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), ) to the ~~Company, through the Trustee, shall deliver such Settlement Notice to~~ converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of (i) any conversions ~~occurring~~ of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period, in the relevant Redemption Notice, (ii) any conversions of Notes for which the relevant Conversion Date occurs on or after ~~June 1~~September 15, ~~2018~~2027, no later than the close of business on the Business Day immediately preceding ~~June 1~~September 15, ~~2018~~2027, or (iii) any conversions of Notes for which the relevant Conversion Date occurs during the period after delivery to the Holders of a Certain Distributions Notification until the related Certain Distributions Conversion Period End Date pursuant to Section 14.01(b)(ii), in such Certain Distributions Notification) (in each case, the “Settlement Method Election Deadline”). If the Company does not elect a Settlement Method with respect to any conversion prior to the ~~deadline set forth in the immediately preceding sentence~~Settlement Method Election Deadline, the Company shall no longer have the right to elect ~~Cash~~ a Settlement Method with respect to any conversion on such Conversion Date or ~~Physical Settlement~~ during such period, and the Company shall be deemed to have elected ~~Combination~~ the Default Settlement in Method with respect ~~of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal~~ to ~~$1,000~~such conversion. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company timely delivers a Settlement Notice electing Combination Settlement (or is deemed to have elected Combination Settlement) in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount shall be deemed to be $1,000 per $1,000 principal amount of ~~Notes shall be deemed to be $1,000. (iv) The cash, shares~~ Notes. For the avoidance 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 Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlementdoubt, the Company’s failure to timely elect a Settlement Method or specify the applicable Specified Dollar Amount shall not constitute a Default under this Indenture. The Company shall deliver a copy of any Settlement Notice 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; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the Converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and ~~the~~ Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common 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 (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be delivered by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 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. The 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. If any shares of Common Stock are due to converting Holders, the 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 Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common 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 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. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date; or (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date or any Fundamental Change Repurchase Date as described in the immediately preceding sentence shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common 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 on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP on the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of 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 (Tpi Composites, 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 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 60 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 the Company’s election, as set forth in this Section 14.02. (i) All conversions of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period, and all conversions for which the relevant Conversion Date occurs on or after ~~June~~ November 1, ~~2018~~ 2029, shall be settled using the same ~~Settlement Method~~forms and amounts of consideration. (ii) Except for any conversions ~~that occur~~ of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period, and any conversions for which the relevant Conversion Date occurs on or after ~~June~~ November 1, ~~2018 to the close of business on the Business Day immediately preceding the Maturity Date~~2029, the Company shall use the same ~~Settlement Method~~ forms and amounts of consideration for all conversions ~~occurring on~~ with the same Conversion Date, but the Company shall not have any obligation to use the same ~~Settlement Method~~ forms and amounts of consideration with respect to conversions ~~that occur on~~ with different Conversion ~~Days~~Dates. (iii) If, in respect of any Conversion Date (or any conversions of Called Notes for which the ~~period described in~~ relevant Conversion Date occurs during the ~~third immediately succeeding set of parentheses~~related Redemption Period or any conversions for which the relevant Conversion Date occurs on or after November 1, ~~as the case may be~~2029), the Company elects to ~~deliver~~ settle all or a ~~notice (the “Settlement Notice”)~~ portion of its Conversion Obligation in excess of the ~~relevant Settlement Method~~ principal portion of the Notes being converted in cash in respect of such Conversion Date (or such period, as the case may be), the ~~Company, through the Trustee,~~ Company shall ~~deliver such Settlement Notice to~~ inform converting Holders through (and upon a written request to) the Trustee of such election (the “Settlement Notice”) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of (A) any conversions ~~occurring~~ of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period, in the related Notice of Optional Redemption or Notice of Cleanup Redemption, as the case may be, or (B) any conversions of Notes for which the relevant Conversion Date occurs on or after ~~June~~ November 1, ~~2018~~2029, no later than ~~the close of business on the Business Day immediately preceding June~~ November 1, ~~2018~~2029), and in each case, the Company shall indicate in such Settlement Notice the percentage of the Conversion Obligation in excess of the principal portion of the Notes being converted that shall be paid in cash (the “Cash Percentage”). If the Company does not elect a ~~Settlement Method~~ Cash Percentage prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect a Cash ~~Settlement~~ Percentage with respect to any conversion on such Conversion Date or ~~Physical Settlement~~ during such period, and the 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 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~~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 Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement~~Amounts, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the Converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 consecutive Trading Days during the related Observation Period. (v) The Daily Net Settlement Amounts (if applicable) and the Daily Conversion Values ~~(if applicable)~~ shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts, the Daily Net Settlement Amounts or (if applicable) and the Daily Conversion ~~Values, as the case may be,~~ Values and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts, the Daily Net Settlement Amounts or (if applicable) and the Daily Conversion ~~Values, as the case may be,~~ Values and the amount of cash payable in lieu of delivering any fractional 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 (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a ~~facsimile~~ facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (~~and,~~ and if different, the Conversion Agent) shall notify the Company of receipt by it of any ~~conversion pursuant to this Article 14 on the Conversion Date for such conversion. No~~ Notice of Conversion ~~with respect to any~~ or corresponding transmission through the Depositary on the date thereof or as soon as practicable thereafter. No Notes may be ~~delivered~~ surrendered for conversion by a Holder thereof if such ~~Holder~~ ▇▇▇▇▇▇ has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 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. The 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. If any shares of Common Stock are due to a converting ~~Holders~~Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to the ~~Conversion Agent~~ Company’s stock transfer or other 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 Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The ~~Conversion Agent~~ Company’s stock transfer or other agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until ~~the Trustee~~ such agent receives a sum sufficient to pay any tax that is due by such ~~Holder~~ ▇▇▇▇▇▇ in accordance with the immediately preceding sentence. (f) Except as provided in Section 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 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. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of ~~Notes into a combination of cash and shares of Common 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 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 Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately ~~succeeding~~ following the corresponding Interest Payment Date; or (34) 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 Redemption Date or described in clause (2) above and any Fundamental Change Repurchase Date as described in ~~the immediately preceding sentence~~ clause (3) above shall receive the full interest payment due on the Maturity ~~Date~~ Date, or other applicable Interest Payment Date following a Regular Record Date described above, as the case may be, in cash regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name ~~the certificate for~~ any shares of Common Stock ~~delivered~~ shall be issuable upon conversion ~~is registered~~ shall be treated as a stockholder of record as of the close of business on the ~~relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the~~ last Trading Day of the relevant Observation ~~Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be~~Period. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common 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 ~~on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP on~~ for the last Trading Day of the relevant Observation ~~Period (in the case of Combination Settlement)~~Period. For each Note surrendered for conversion, ~~if the Company has elected (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 (Lci Industries)

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 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 60 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 the Company’s election, as set forth in this Section ‎Section 14.02. (i) All conversions of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period, and all conversions for which the relevant Conversion Date occurs on or after ~~June~~ October 1, ~~2018~~ 2028, shall be settled using the same ~~Settlement Method~~forms and amounts of consideration. (ii) Except for any conversions ~~that occur~~ of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period, and any conversions for which the relevant Conversion Date occurs on or after ~~June~~ October 1, ~~2018 to the close of business on the Business Day immediately preceding the Maturity Date~~2028, the Company shall use the same ~~Settlement Method~~ forms and amounts of consideration for all conversions ~~occurring on~~ with the same Conversion Date, but the Company shall not have any obligation to use the same ~~Settlement Method~~ forms and amounts of consideration with respect to conversions ~~that occur on~~ with different Conversion ~~Days~~Dates. (iii) If, in respect of any Conversion Date (or any conversions of Called Notes for which the ~~period described in~~ relevant Conversion Date occurs during the ~~third immediately succeeding set of parentheses~~related Redemption Period or any conversions for which the relevant Conversion Date occurs on or after October 1, ~~as the case may be~~2028), the Company elects to ~~deliver~~ settle all or a ~~notice (the “Settlement Notice”)~~ portion of its Conversion Obligation in excess of the ~~relevant Settlement Method~~ principal portion of the Notes being converted in cash in respect of such Conversion Date (or such period, as the case may be), the ~~Company, through the Trustee,~~ Company shall ~~deliver such Settlement Notice to~~ inform converting Holders of such election (the “Settlement Notice”) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of (A) any conversions ~~occurring~~ of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period, in the related Notice of Redemption or (B) any conversions of Notes for which the relevant Conversion Date occurs on or after ~~June~~ October 1, ~~2018~~2028, no later than ~~the close of business on the Business Day immediately preceding June~~ October 1, ~~2018~~2028) and the Company shall indicate in such Settlement Notice the percentage of the Conversion Obligation in excess of the principal portion of the Notes being converted that shall be paid in cash (the “Cash Percentage”). If the Company does not elect a ~~Settlement Method~~ Cash Percentage prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect a Cash ~~Settlement~~ Percentage with respect to any conversion on such Conversion Date or ~~Physical Settlement~~ during such period, and the 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 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~~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 Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement~~Amounts, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the Converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 consecutive Trading Days during the related Observation Period. (v) The Daily Net Settlement Amounts (if applicable) and the Daily Conversion Values ~~(if applicable)~~ shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts, the Daily Net Settlement Amounts or (if applicable) and the Daily Conversion ~~Values, as the case may be,~~ Values and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the 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 (if applicable) and the Daily Conversion ~~Values, as the case may be,~~ Values and the amount of cash payable in lieu of delivering any fractional 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 (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a ~~facsimile~~ facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in ~~Section~~ ‎Section 14.02(h). The Trustee (~~and,~~ and if different, the Conversion Agent) shall notify the 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 ~~delivered~~ surrendered for conversion by a Holder thereof if such ~~Holder~~ ▇▇▇▇▇▇ has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with ~~Section~~ ‎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. The 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. If any shares of Common Stock are due to a converting ~~Holders~~Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, ~~certificates or a book-entry transfer through the Depositary for~~ the full number of shares of Common Stock to which such Holder shall be ~~entitled~~ entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax or other similar governmental charge due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common 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 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. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of ~~Notes into a combination of cash and shares of Common 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 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 Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately ~~succeeding~~ following the corresponding Interest Payment Date; or (34) 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 Fundamental Change Repurchase Date as described in the immediately preceding sentence~~ shall receive the full interest payment due on the Maturity Date ~~or other applicable Interest Payment Date~~ 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~~ shall be issuable upon conversion ~~is registered~~ shall be treated as a stockholder of record as of the close of business on the ~~relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the~~ last Trading Day of the relevant Observation ~~Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be~~Period. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common 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 ~~on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP on~~ for the last Trading Day of the relevant Observation ~~Period (in the case of Combination Settlement)~~Period. For each Note surrendered for conversion, ~~if the Company has elected (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 (Merit Medical Systems Inc)

Conversion Procedure; Settlement Upon Conversion. (a) ~~Subject~~ If the Company has not received the requisite approval from its shareholders in accordance with Section 312.03 of The New York Stock Exchange Listed Company Manual prior to August 15, 2020 (“Shareholder Approval”) to issue 20% or more of its Common Shares upon conversion of the Notes prior to the relevant Conversion Date (or, if earlier, August 15, 2020), and subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the Company shall pay to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, solely an amount of cash as if the Company had elected Cash Settlement as set forth in this Section 14.02. If the Company has received Shareholder Approval prior to the relevant Conversion Date (or, if earlier, August 15, 2020), and subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), ~~shares of~~ Common ~~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 ~~the Company’s~~ its election, as set forth in this Section 14.02. If the Company receives Shareholder Approval on any day, it shall so notify the Holders, the Trustee and the Conversion Agent within five Business Days of such approval. (i) All conversions for which the relevant Conversion Date occurs on or after ~~June 1~~August 15, ~~2018~~ 2020 shall be settled using the same Settlement Method. For the avoidance of doubt, if the Company has not received Shareholder Approval prior to August 15, 2020, Cash Settlement shall apply to all conversions of Notes with a Conversion Date occurring on or after August 15, 2020. (ii) Except for any conversions ~~that occur~~ for which the relevant Conversion Date occurs on or after ~~June 1~~August 15, ~~2018 to the close of business on the Business Day immediately preceding the Maturity Date~~2020, the Company shall use the same Settlement Method for all conversions ~~occurring on~~ with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions ~~that occur on~~ with different Conversion ~~Days~~Dates. (iii) IfFollowing the Company’s receipt of Shareholder Approval, if, in respect of any Conversion Date (or the period described in the third immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions ~~occurring~~ for which the relevant Conversion Date occurs on or after ~~June 1~~August 15, ~~2018~~2020, no later than ~~the close of business on the Business Day immediately preceding June 1~~August 15, ~~2018~~2020). If the Company has received Shareholder Approval and does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. (iv) ~~The~~ Subject to the Company’s receipt of Shareholder Approval as described in this Section 14.02 (a), 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 Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of ~~shares of~~ Common ~~Stock~~ Shares equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 100 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, ~~to the Converting Holder~~ in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 100 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional ~~share of~~ Common ~~Stock~~Share, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional ~~shares of~~ Common ~~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 (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ~~shares of~~ Common ~~Stock~~ Shares to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, 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). The Trustee (~~and,~~ and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be ~~delivered~~ surrendered by a Holder thereof if such ~~Holder~~ ▇▇▇▇▇▇ has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 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. ~~The~~ Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the 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 however that with respect to conversions for which Physical Settlement applies and the relevant Conversion Date occurs after the Regular Record Date immediately preceding the Maturity Date, the Company shall deliver and, if applicable, pay the consideration due in respect of the Conversion Obligation on the Maturity Date. If any ~~shares of~~ Common ~~Stock~~ Shares are due to converting Holders, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, ~~certificates or a book-entry transfer through the Depositary for~~ the full number of ~~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 Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any ~~shares of~~ Common ~~Stock~~ Shares upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the ~~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, 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 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. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and ~~shares of~~ Common ~~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 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 Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately ~~succeeding~~ following the corresponding Interest Payment Date; or (3) 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 Fundamental Change Repurchase Date as described in the immediately preceding sentence~~ shall receive the full interest payment due on the Maturity ~~Date or other applicable Interest Payment~~ Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the ~~certificate for any shares of~~ Common ~~Stock delivered~~ Shares shall be issuable upon conversion ~~is registered~~ shall be treated as a ~~stockholder~~ shareholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional ~~share of~~ Common ~~Stock~~ Share upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional ~~share of~~ Common ~~Stock~~ Share issuable upon conversion based on the Daily VWAP on for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP on for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected ~~(or is deemed to have elected)~~ Combination Settlement, the full number of shares that shall be 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 (Invacare Corp)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~14.02~~11.02, Section ~~14.03(b~~11.03(b) and Section ~~14.07(a~~11.07(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), 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~~ 11.02 (“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~~ 11.02 (“Combination Settlement”), at ~~the Company’s~~ its election, as set forth in this Section ~~14.02~~11.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~June 1~~November 15, ~~2018~~ 2024 and all conversions for which the relevant Conversion Date occurs after the issuance of a Notice of Redemption and prior to the related Redemption Date shall be settled using the same Settlement Method. (ii) Except for any conversions ~~that occur~~ for which the relevant Conversion Date occurs after the Company’s issuance of a Notice of Redemption with respect to the Notes, but prior to the related Redemption Date, and any conversions for which the relevant Conversion Date occurs on or after ~~June 1~~November 15, ~~2018 to the close of business on the Business Day immediately preceding the Maturity Date~~2024, the Company shall use the same Settlement Method for all conversions occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions that occur on different ~~Conversion~~ Trading Days. (iii) If, in respect of any Conversion Date (or in respect of one of the ~~period~~ periods described in the ~~third~~ fourth immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the ~~Company, through the Trustee,~~ Company shall deliver such Settlement Notice to converting ~~Holders~~ Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Trading Day immediately following the ~~relevant~~ related Conversion Date (or, in the case of ~~any~~ conversions occurring (x) after the date of issuance of a Notice of Redemption and prior to the related Redemption Date, in such Notice of Redemption or (y) on or after ~~June 1~~November 15, ~~2018~~2024, no later than the close of business on the ~~Business~~ Scheduled Trading Day immediately preceding ~~June 1~~November 15, ~~2018~~2024). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. (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 Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 25 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, ~~to the Converting Holder~~ in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 25 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common 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~~11.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~14.02(h~~11.02(h) and, if required, pay all transfer and similar taxes, if any as provided in Sections 11.02(d) or (e), and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be delivered by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 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. The 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. If any shares of Common Stock are due to converting Holders, the 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 Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common 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 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. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date; or (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date or any Fundamental Change Repurchase Date as described in the immediately preceding sentence shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common 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 on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP on the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of 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 (Opko Health, 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 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 ~~the Company’s~~ its election, as set forth in this Section 14.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~June 1~~March 15, ~~2018~~ 2030 or during a Redemption Period shall be settled using the same Settlement Method. (ii) Except for any conversions ~~that occur~~ for which the relevant Conversion Date occurs during a Redemption Period and any conversions for which the relevant Conversion Date occurs on or after ~~June 1~~March 15, ~~2018 to the close of business on the Business Day immediately preceding the Maturity Date~~2030, the Company shall use the same Settlement Method for all conversions ~~occurring on~~ with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions ~~that occur on~~ with different Conversion ~~Days~~Dates. (iii) If, in respect of any Conversion Date (or the period described in the third immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the ~~Company, through the Trustee,~~ Company shall deliver such Settlement Notice to the Trustee, the Conversion Agent, and converting Holders no later than the close of business on the first Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions ~~occurring~~ for which the relevant Conversion Date occurs (i) during a Redemption Period, in the related Redemption Notice or (ii) on or after ~~June 1~~March 15, ~~2018~~2030, no later than ~~the close of business on the Business Day immediately preceding June 1~~March 15, ~~2018~~2030). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement for such conversion or during such period and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes to be converted shall be deemed to be $1,000. Notwithstanding anything to the contrary in the foregoing, the Company shall be permitted to irrevocably elect Physical Settlement in any Certain Distributions Notification and any such election would be applicable to conversions with Conversion Dates that occur after delivery to the Holders of the Certain Distributions Notification until the Certain Distributions Conversion Period End Date. By notice to Holders, the Trustee and the Conversion Agent, the Company may, prior to March 15, 2030, at its option, irrevocably elect to satisfy its Conversion Obligation through Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of at least $1,000 for all Conversion Dates occurring subsequent to delivery of such notice and for which another Settlement Method does not otherwise apply or is not otherwise deemed to apply as set forth above. If the Company irrevocably elects Combination Settlement with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above a specific amount, the Company will, after the date of such election, inform Holders converting their Notes, the Trustee and the Conversion Agent (if other than the Trustee) of such Specified Dollar Amount no later than the relevant Settlement Method Election Deadline, or, if the Company does not timely notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) such Specified Dollar Amount will be the specific amount set forth in the election notice or, if no specific amount was set forth in the election notice, such Specified Dollar Amount will be $1,000 per $1,000 principal amount of Notes. 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, including pursuant to the provisions described in Section 10.01(l). 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 Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion ~~Date~~Date (plus cash in lieu of any fractional share of Common Stock issuable upon conversion); (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 20 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, ~~to the Converting Holder~~ in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 20 consecutive Trading Days during the related Observation ~~Period~~Period (plus cash in lieu of any fractional share of Common Stock issuable upon conversion). (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common 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 Special Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and, if required, pay all transfer or similar taxes, if any, pursuant to Section 14.02(e) and ~~(ii)~~ in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a ~~facsimile~~ facsimile, PDF or other electronic transmission thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer ~~documents and~~ documents, (4) if required, pay funds equal to ~~interest~~ the Special Interest payable on the next Special Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (5) if required, pay all transfer or similar taxes, if any, pursuant to Section 14.02(e). The Trustee (~~and,~~ and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be ~~delivered~~ surrendered by a Holder thereof if such ~~Holder~~ H▇▇▇▇▇ has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 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. ~~The~~ Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the ~~third~~ second Business Day immediately following the relevant Conversion Date, if the Company elects to satisfy its Conversion Obligation through Physical ~~Settlement~~Settlement (provided that, with respect to any Conversion Date following the Special Interest Record Date immediately preceding the Maturity Date where Physical Settlement applies to the related Conversion, the Company will settle any such Conversion on the Maturity Date), or on the ~~third~~ second Business Day immediately following the last Trading Day of the ~~relevant~~ Observation Period, in if the ~~case of~~ Company elects to satisfy its Conversion Obligation through any other Settlement Method. If any shares of Common Stock are due to a converting ~~Holders~~Holder, the 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 Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common 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 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. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid ~~interest~~Special Interest, if any, to, but ~~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, any accrued and unpaid ~~interest~~ Special Interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a ~~Regular~~ Special Interest Record Date but prior to the open of business on the immediately following Special Interest Payment Date, Holders of such Notes as of the close of business on such ~~Regular~~ Special Interest Record Date will receive the full amount of ~~interest payable~~ Special Interest, if any, due 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, if Special Interest is payable on the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a ~~Regular~~ Special Interest Record Date and on or prior to the Business Day immediately ~~succeeding~~ following the corresponding Special Interest Payment Date; (3) if the Company has specified a Redemption Date that is after a Special Interest Record Date and on or prior to the Business Day immediately following the corresponding Special Interest Payment Date or (34) to the extent of any Defaulted ~~Amounts~~Amounts or Special Interest, if any Defaulted Amounts or Special 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~~ Special Interest Record Date immediately preceding the Maturity Date or (if and to the extent Special Interest is payable on the Maturity Date), any Redemption Date and any Fundamental Change Repurchase Date as described in ~~the immediately preceding sentence~~ clause (2) above shall receive the full ~~interest payment~~ Special Interest payment, if any, due on the Maturity Date or other applicable Interest Payment Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common 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 on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP on the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of 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.Spec

Appears in 1 contract

Sources: Indenture (Cloudflare, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) . (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the Company ~~shall~~ shall, at its election, pay or deliver, as the case may be, to the converting Holder, in ~~respect~~ full satisfaction of ~~each $1,000 principal amount of Notes being converted~~its Conversion Obligation, cash (“Cash Settlement”), shares of the Common 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 the Company’s election~~, as set forth in this Section 14.02. (i) All conversions of Notes (a) for which the relevant Conversion Date occurs on or after ~~June 1~~December 15, ~~2018~~ 2025, (b) occurring after a Redemption Notice Date and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date, and (iii) following the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(ii), in each case, shall be settled using the same Settlement ~~Method.~~ Method (including the same relative proportion of cash and/or shares of the Common Stock). Except for (i) any conversions for which the relevant Conversion Date occurs on or after December 15, 2025, (ii) ~~Except for~~ any conversions ~~that occur on or~~ of Notes called for Redemption pursuant to Section 16.01 occurring after ~~June 1, 2018~~ a Redemption Notice Date and prior to the close of business on the ~~Business~~ second Scheduled Trading Day immediately preceding the ~~Maturity~~ related Redemption Date, and (iii) any conversion following the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(ii), in each case, the Company shall use the same Settlement Method (including the same relative proportion of cash and/or shares of the Common Stock) for all conversions ~~occurring on~~ with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions ~~that occur on~~ with different Conversion ~~Days~~Dates. (~~iii~~ii) ~~If, in respect~~ Subject to the Company’s irrevocable election of ~~any Conversion Date (or the period~~ a Settlement Method as described in this Section 14.02(a)(ii), if the ~~third immediately succeeding set of parentheses, as the case may be)~~Company elects a Settlement Method, the Company ~~elects~~ shall deliver notice to ~~deliver a notice (~~Holders through the ~~“Settlement Notice”)~~ Conversion Agent of ~~the relevant~~ such Settlement Method ~~in respect of such Conversion Date (or such period, as~~ the ~~case may be), the Company, through the Trustee, shall deliver such Settlement Notice to converting Holders~~ Company has selected no later than the close of business on the Trading Day immediately following the ~~relevant~~ related Conversion ~~Date (or~~Date, or in the case of any conversions for which the relevant Conversion Date occurs after December 15, 2025, no later than December 15, 2025, or in the case of any conversion of Notes called for Redemption pursuant to Section 16.01 occurring on or after ~~June 1, 2018, no later than~~ a Redemption Notice Date and prior to the close of business on the ~~Business~~ second Scheduled Trading Day immediately preceding ~~June 1~~the relevant Redemption Date, ~~2018)~~in the Notice of Redemption. If the Company does not timely elect a Settlement ~~Method prior to the deadline set forth in the immediately preceding sentence~~Method, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to that Conversion Date and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. ~~Such~~ If the Company has timely elected Combination Settlement ~~Notice shall specify~~ in respect of any conversion but does not timely notify the ~~relevant Settlement Method and in~~ converting Holders through 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, the Specified Dollar Amount shall be deemed to be $1,000. If By notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company ~~delivers a Settlement Notice electing~~ may, prior to the close of business on the Scheduled Trading Day immediately preceding December 15, 2025, at its option, irrevocably elect to satisfy its Conversion Obligations with respect to the Notes through Combination Settlement ~~in respect of its Conversion Obligation but does not indicate~~ with a Specified Dollar Amount per $1,000 principal amount of Notes in of at least $1,000 for all Conversion Dates occurring subsequent to delivery of such notice and for which another Settlement ~~Notice,~~ Method does not otherwise apply. If the Company irrevocably elects Combination Settlement with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes ~~shall be deemed to be $1,000~~at or above a specific amount, the Company shall, after the date of such election, 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. (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 Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate ~~in effect~~ on the Conversion ~~Date~~Date (plus cash in lieu of any fractional share of Common Stock issuable upon conversion); (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 40 consecutive VWAP Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the ~~Converting~~ converting Holder in respect of each $1,000 principal amount of Notes being ~~converted,~~ converted a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 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 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 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~~ 14.02(g); and (ii) in To convert a Certificated Note, the ~~case of a Physical Note~~ Holder must: (1A) complete, ~~manually~~ sign (by manual, electronic or facsimile signature) and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile or delivery by electronic mail of a pdf thereof) (a “Notice of Conversion”) at the Corporate Trust Office or the office of the Conversion Agent (if other than the Trustee) and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion ~~Obligation~~ Obligations to be registered, ~~(2)~~ and surrender such ~~Notes, duly endorsed~~ Note to the ~~Company~~ Conversion Agent at the Corporate Trust Office or ~~in blank (and accompanied by appropriate endorsement and transfer documents), at~~ the office of the Conversion ~~Agent,~~ Agent (3if other than the Trustee); (B) 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~~14.02(g). The Trustee (~~and,~~ and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion or, if notice on such date is not feasible given the nature of the conversion, promptly thereafter. ~~No Notice of Conversion with respect to any Notes may be delivered by~~ If a Holder ~~thereof if such Holder~~ has ~~also~~ already delivered a Fundamental Change Repurchase Notice with respect to ~~the Company in respect of~~ a Note, such ~~Notes and~~ Holder may not surrender such Note for conversion until such Holder has ~~not~~ validly withdrawn such Fundamental Change Repurchase Notice (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~~ a Holder has already delivered a Fundamental Change Repurchase Notice, such Holder’s right to withdraw such notice and convert the Notes that are subject to repurchase will terminate at the close of business on the Business Day immediately preceding the relevant Fundamental Change Repurchase Date. If the Company has designated a Redemption Date pursuant to Section 16.02, a Holder that complies with the requirements for conversion set forth in this Section 14.02(b) shall be ~~surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect~~ deemed to ~~such~~ have delivered a notice of its election not have its 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~~redeemed. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in ~~subsection (b~~Section 14.02(b). Subject to the next paragraph and the provisions of Section 14.03(b) ~~above. The~~ and Section 14.07(a), the Company shall pay or deliver, as the case may be, the ~~consideration~~ Settlement Amount due in respect of the Conversion Obligation on no later than: (i) if the ~~third~~ Company elects Physical Settlement, the second Business Day immediately following the relevant Conversion Date for any conversion occurring prior to the Regular Record Date immediately preceding the Maturity Date, or on the Maturity Date for any conversion occurring on or after the Regular Record Date immediately preceding the Maturity Date; or (ii) if the Company elects ~~Physical~~ Combination Settlement, ~~or on~~ the ~~third~~ second Business Day immediately following the last VWAP Trading Day of the relevant Observation Period~~, in the case of any other Settlement Method~~. If any shares of Common Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the ~~Depositary~~ 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 Company’s Conversion Obligation. (d) In case any Certificated Note shall be surrendered for partial conversion, in $1,000 principal amount or an integral multiple of $1,000 in excess thereof, the Company shall execute and upon receipt of a Company Order, the Trustee shall authenticate and deliver to or upon the written order of the Holder ~~of the Note~~ so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the ~~issue~~ issuance of any shares of Common Stock upon ~~conversion~~conversion of such Note, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common 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 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. The Company’s ~~settlement~~ payment or delivery, as the case may be, of the ~~full Conversion Obligation~~ Settlement Amount upon conversion of any Note shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than ~~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 ~~will~~ shall receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so ~~converted~~converted on the corresponding Interest Payment Date (regardless of whether the converting Holder was the Holder of record on the corresponding Regular Record Date); provided that no such payment ~~shall~~ need be ~~required~~ made: (1i) if the Notes are surrendered for ~~conversions~~ conversion following the Regular Record Date immediately preceding the Maturity Date; ; (2ii) if the Notes surrendered for conversion are subject to Redemption by the Company on a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (iii) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately ~~succeeding~~ following the corresponding Interest Payment Date; or or (3iv) 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~~ For the avoidance of doubt, all Holders ~~of record~~ on the Regular Record Date immediately preceding the Maturity Date, any Redemption Date or as described in clause (ii) above, and any Fundamental Change Repurchase Date ~~as described in the immediately preceding sentence~~ shall receive and retain the full interest payment due on the Maturity Date or other applicable Interest Payment Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common 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 on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP on the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of 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.appl

Appears in 1 contract

Sources: Indenture (MACOM Technology Solutions 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 Company shall pay or and, if applicable, 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 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) 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 the Company’s election, as set forth in this Section 14.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~June 1~~September 15, ~~2018~~ 2027 shall be settled using the same ~~Settlement Method. (ii)~~ Cash Percentage. Except for any conversions ~~that occur~~ for which the relevant Conversion Date occurs on or after ~~June 1~~September 15, ~~2018 to the close of business on the Business Day immediately preceding the Maturity Date~~2027, the Company shall use the same ~~Settlement Method~~ Cash Percentage for all conversions ~~occurring on~~ with the same Conversion Date, but the Company shall not have any obligation to use the same ~~Settlement Method~~ Cash Percentage with respect to conversions ~~that occur on~~ with different Conversion ~~Days. (iii)~~ Dates. If, in respect of any Conversion Date (or the period described in the third immediately succeeding set of parentheses, as the case may be), the Company elects to ~~deliver~~ 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 (or such period, as the case may be), the ~~Company, through the Trustee,~~ Company shall ~~deliver such Settlement Notice to~~ inform converting Holders 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 ~~occurring~~ for which the relevant Conversion Date occurs on or after ~~June 1~~September 15, ~~2018~~2027, no later than September 15, 2027) and the ~~close~~ Company shall indicate in such Settlement Notice the percentage of ~~business on~~ the ~~Business Day immediately preceding June 1, 2018~~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 Company does not elect a ~~Settlement Method~~ Cash Percentage prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect a Cash ~~Settlement or Physical Settlement and~~ Percentage, the 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 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 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 Company elects to satisfy~~ its Conversion Obligation in ~~respect~~ excess of ~~such conversion by Physical Settlement~~the aggregate principal portion of the Notes being converted as set forth herein (subject to Section 14.02(j)). At the time that the Company informs the Holders of any election pursuant to the second immediately preceding sentence, the Company shall ~~deliver~~ send a copy of the Settlement Notice to the ~~converting Holder in respect~~ Trustee and the Conversion Agent (if other than the Trustee). For the avoidance of ~~each $1,000 principal amount of Notes being converted~~ doubt, failure to deliver a ~~number of shares of Common Stock equal~~ Settlement Notice to the ~~Conversion Rate in effect on~~ Trustee or the Conversion ~~Date;~~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 third immediately preceding sentences. (Bii) ~~if the Company elects to satisfy its Conversion Obligation in respect~~ For any conversion of ~~such conversion by Cash Settlement~~Notes, the ~~Company 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 50 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the Converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the relevant Observation Period. Promptly after such determination of the Daily Settlement ~~Amounts or~~ 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 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 (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a ~~facsimile~~ facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedures of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (~~and,~~ and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be ~~delivered~~ surrendered by a Holder thereof if such ~~Holder~~ ▇▇▇▇▇▇ has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 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. ~~The~~ Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or and 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~~ 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 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 Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute ~~and~~ and, upon Company Order, the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver or refuse to instruct the stock transfer agent to deliver the certificates representing the shares of Common 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 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. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of ~~Notes into a combination of cash and shares of Common 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 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 Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately ~~succeeding~~ following the corresponding Interest Payment Date; or (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date or any Fundamental Change Repurchase Date as described in ~~the immediately preceding sentence shall~~ clause (2) above shall, in each case, receive the full interest payment due on the Maturity Date or ~~other~~ the applicable Interest Payment ~~Date~~ Date, as the case may be, in cash regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the ~~certificate for any~~ shares of Common Stock ~~delivered~~ shall be issuable upon conversion ~~is registered~~ shall be treated as a stockholder of record as of the close of business on the ~~relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the~~ last Trading Day of the ~~relevant~~ related Observation ~~Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be~~Period. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common 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 ~~on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP on~~ for the last Trading Day of the relevant Observation ~~Period (in the case of Combination Settlement)~~Period. For each Note surrendered for conversion~~, if the Company has elected (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 (Evergy, 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 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(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 ~~the Company’s~~ its election, as set forth in this ~~Section 14.02~~‎Section 14.02 Notwithstanding anything to the contrary in this Indenture, the Company shall be deemed to have elected Cash Settlement in respect of any conversion of Notes for which the relevant Conversion Date occurs prior to the Share Reservation Date. (i) All conversions for which the relevant Conversion Date occurs on or after ~~June 1~~November 15, ~~2018~~ 2022 shall be settled using the same Settlement Method. (ii) Except for any conversions ~~that occur~~ for which the relevant Conversion Date occurs on or after ~~June 1~~November 15, ~~2018 to the close of business on the Business Day immediately preceding the Maturity Date~~2022, the Company shall use the same Settlement Method for all conversions occurring on the same Conversion Date, ~~but~~ but, except as set forth under ‎Section 14.01(b)(ii), the Company shall not have any obligation to use the same Settlement Method with respect to conversions ~~that occur on~~ with different Conversion ~~Days~~Dates. (iii) Notwithstanding anything to the contrary in this Indenture or the Notes, the Company shall be deemed to have elected Cash Settlement in respect of any conversion of Notes for which the relevant Conversion Date occurs prior to the first date (the “Share Reservation Date”) on which (x) either (1) the Company’s stockholders have approved an increase in the number of authorized but unissued shares of the Common Stock that are not reserved for other purposes or (2) the Company otherwise has (whether through unreserving shares of Common Stock reserved for other purposes or otherwise) a number of authorized but unissued shares of Common Stock that are not reserved for other purposes, in each case sufficient for the Company to issue and deliver upon conversion of all outstanding Notes the full number of shares of Common Stock underlying such Notes, assuming for such purposes that a single Holder converted all outstanding Notes and the Company elected Physical Settlement in respect of such conversion, and including the maximum number of Additional Shares that may be added to the Conversion Rate upon conversion in connection with a Make-Whole Fundamental Change, as described in ‎Section 14.03 (the “Maximum Number of Underlying Shares”) and (y) the Company has reserved for issuance upon conversion of all outstanding Notes a number of shares of Common Stock equal to the Maximum Number of Underlying Shares. For any conversions for which the relevant Conversion Date occurs on or after the Share Reservation Date, the Company may elect Cash Settlement, Physical Settlement or Combination Settlement as otherwise described in this ‎Section 14.02. (iv) If, in respect of any Conversion Date (or one of the ~~period~~ periods described in the third immediately succeeding set of parentheses, as the case may be), the Company elects to a Settlement Method, the Company shall deliver a written notice (the “Settlement Notice”) of the ~~relevant~~ Settlement Method so elected in respect of such Conversion Date (or such period, as the case may be~~), the Company, through the Trustee, shall deliver such Settlement Notice~~ ) to converting Holders no later than the close of business on the VWAP Trading Day immediately following the relevant Conversion Date (~~or,~~ or in the case of any conversions occurring (x) during a Distributions Trigger Irrevocable Physical Settlement Period for which the Company has irrevocably elected that Physical Settlement apply, in the related notice specified in ‎Section 14.01(b)(ii), or (y) on or after ~~June 1~~November 15, ~~2018~~2022, no later than the close of business on the Business Day immediately preceding ~~June 1~~November 15, ~~2018~~2022). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If ~~the Company delivers a Settlement Notice electing Combination Settlement~~ in respect of ~~its~~ any conversion of Notes for which the relevant Conversion ~~Obligation~~ Date occurs on or after the Share Reservation Date, the Company fails to timely elect a Settlement Method prior to the deadline set forth in the second immediately preceding sentence, the Company shall be deemed to have elected the Default Settlement Method. If the Company is permitted to elect, and timely elects, Combination Settlement, but does not ~~indicate a Specified Dollar Amount per $1,000 principal amount~~ timely notify, in writing, converting Holders of ~~Notes in such Settlement Notice,~~ the Specified Dollar Amount per $1,000 principal amount of ~~Notes~~ Notes, such Specified Dollar Amount shall be deemed to be $1,000. For the avoidance of doubt, the Company’s failure to so select a Settlement Method or Specified Dollar Amount when so permitted shall not constitute a Default or Event of Default under this Indenture or the Notes. The Default Settlement Method shall apply on and after the Share Reservation Date, and the Company may, from time to time, change the Default Settlement Method by sending notice of the new Default Settlement Method to the Holders. (ivv) 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 Physical Settlement applies with respect to the ~~Company elects~~ Company’s obligation to satisfy its Conversion Obligation in respect of such ~~conversion by Physical Settlement~~conversion, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if Cash Settlement applies with respect to the ~~Company elects~~ Company’s obligation to satisfy its Conversion Obligation in respect of such ~~conversion by Cash Settlement~~conversion, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 60 consecutive VWAP Trading Days during the related Observation Period; and (C) if Combination Settlement applies with respect to the ~~Company elects (or is deemed to have elected)~~ Company’s obligation to satisfy its Conversion Obligation in respect of such ~~conversion by Combination Settlement~~conversion, the Company shall pay or deliver, as the case may be, ~~to the Converting Holder~~ in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 60 consecutive VWAP Trading Days during the related Observation Period. (vvi) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly 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 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~~ ‎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 an 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~~ ‎Section 14.02(h) and, if required, pay all transfer or similar taxes, if any, as set forth in ‎Section 14.02(d) and ‎Section 14.02(e) and (iii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion ~~(or a facsimile thereof)~~ (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date ~~to which such Holder is not entitled~~ as set forth in ~~Section~~ ‎Section 14.02(h). The Trustee (and, if different, the Conversion Agent) shall notify the 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 ~~delivered~~ surrendered for conversion by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not ~~validly~~ withdrawn such Fundamental Change Repurchase Notice in accordance with ~~Section~~ ‎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. ~~The~~ Except as set forth in ‎‎Section 14.03(b) and ‎Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the ~~third~~ second Business Day immediately following the relevant Conversion Date (except with respect to a Conversion Date occurring on or after November 15, 2022, in which case the Company shall settle any such conversion on the Maturity Date), if ~~the Company elects~~ Physical ~~Settlement~~Settlement applies, or on the ~~third~~ second Business Day immediately following the last VWAP Trading Day of the relevant Observation Period, in the case of any other Settlement Method. If any shares of Common Stock are due to converting Holders, the 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 Company’s Conversion Obligation. (d) ~~In case~~ If, in respect of certificated Notes, any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any ~~documentary, stamp or similar issue or~~ transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax or other similar governmental charge due on ~~the issue~~ any issuance of any shares of Common 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 Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below, and the Company shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but ~~not including~~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 will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment ~~shall~~ need be ~~required~~ made (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date; or (3) 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 Maturity Date ~~or any Fundamental Change Repurchase Date as described in the immediately preceding sentence~~ shall receive the full interest payment due on the Maturity Date ~~or other applicable Interest Payment Date~~ in cash regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall ~~be treated as a~~ become the stockholder of record as of the close of business on the relevant Conversion Date (if in the ~~Company elects to satisfy the related Conversion Obligation by~~ case of Physical Settlement) or the last VWAP Trading Day of the relevant Observation Period (if in the ~~Company elects to satisfy the related Conversion Obligation by~~ 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. (j) The 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 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 based on the Daily VWAP on the last VWAP Trading Day of the relevant Observation ~~Period (~~Period, in the case of Combination Settlement). For each Note surrendered for conversion, if ~~the Company has elected (or is deemed to have elected)~~ Combination Settlement, the full number of shares that shall be 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.Settlemen

Appears in 1 contract

Sources: Indenture (Ligand Pharmaceuticals 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, 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 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 ~~the Company’s~~ its election, as set forth in this Section 14.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~June~~ September 1, ~~2018~~ 2027 shall be settled using the same Settlement ~~Method~~Method (and, if applicable, the same Specified Dollar Amount). (ii) ~~Except~~ Subject to Section 14.02(a)(iii)(B), except for any conversions ~~that occur~~ for which the relevant Conversion Date occurs on or after ~~June~~ September 1, ~~2018 to the close of business on the Business Day immediately preceding the Maturity Date~~2027, the Company shall use the same Settlement Method (and, if applicable, the same Specified Dollar Amount) for all conversions ~~occurring on~~ of Notes with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions ~~that occur on~~ of Notes with different Conversion ~~Days~~Dates. (iii) If(A) Subject to Section 14.02(a)(iii)(B), if, in respect of any Conversion Date (or the period described in the ~~third~~ fourth immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a written notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the ~~Company, through the Trustee,~~ Company shall deliver such Settlement Notice to converting ~~Holders~~ Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Trading Day immediately following the ~~relevant~~ related Conversion Date (or, in the case of any conversions ~~occurring~~ of Notes for which the relevant Conversion Date occurs on or after ~~June~~ September 1, ~~2018~~2027, no later than ~~the close of business on the Business Day immediately preceding June~~ September 1, ~~2018~~2027). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding ~~sentence~~sentence and the Company has not previously made an irrevocable Settlement Method election pursuant to Section 14.02(a)(iii)(B), the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. (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 Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the Converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common 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 (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be delivered by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 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. The 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. If any shares of Common Stock are due to converting Holders, the 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 Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common 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 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. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date; or (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for For the avoidance of doubt, ~~all~~ the Company’s failure to make a timely election of a Settlement Method or to timely notify converting Holders of ~~record on~~ the Regular Record Date immediately preceding the Maturity Date or any Fundamental Change Repurchase Date as described in the immediately preceding sentence shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company Specified Dollar Amount 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 on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP on the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of 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 cashconstitute a default under this Indenture.

Appears in 1 contract

Sources: Indenture (PACIFIC GAS & ELECTRIC Co)

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 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 ~~the Company’s~~ its election, as set forth in this Section ~~14.02~~13.02. (i) All conversions ~~for which the relevant Conversion Date occurs~~ occurring on or after ~~June~~ September 1, ~~2018~~ 2021 shall be settled using the same Settlement Method. (ii) ~~Except for any conversions that occur on or after June~~ Prior to September 1, ~~2018 to the close of business on the Business Day immediately preceding the Maturity Date~~2021, the Company shall use the same Settlement Method for all conversions occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions that occur on different Conversion ~~Days~~Dates. (iii) If, in respect of any Conversion Date (or any conversions of Notes occurring during the period ~~described in~~ beginning on, and including, September 1, 2021 and ending on, and including, the ~~third~~ Scheduled Trading Day immediately ~~succeeding set of parentheses~~preceding the Maturity Date, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions occurring on or after ~~June~~ September 1, ~~2018~~2021, no later than ~~the close of business on the Business Day immediately preceding June~~ September 1, ~~2018~~2021). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar ~~Amount per $1,000 principal amount of Notes~~Amount. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount ~~per $1,000 principal amount of Notes~~ in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. (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 Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted ~~cash in~~ an amount in cash equal to the sum of the Daily Conversion Values for each of the 50 15 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, ~~to the Converting Holder~~ in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 15 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of ~~delivering~~ any fractional ~~share of Common Stock~~share, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of ~~delivering~~ fractional shares of Common 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 (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay all taxes or duties, if any, and (5) if required, 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). The Trustee (and, if different, the Conversion Agent) shall notify the 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 ~~delivered~~ surrendered by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the ~~Company~~ Paying Agent 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. ~~The~~ Except as provided in Section 13.03(b) and in Section 13.07, the 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. If any shares of Common Stock are due to converting Holders, the 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 portion of the Company’s Conversion ~~Obligation~~Obligation that consists of shares of Common Stock, and, on or prior to such issuance, the Company shall give the Conversion Agent notice of the number of shares of Common Stock being so issued and the method by which the issuance shall take place. Any required funds due to a converting Holder in connection with a Cash Settlement or Combination Settlement shall be delivered to the Paying Agent in accordance with the procedures set forth in Section 14.03. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment by the converting Holder of a sum sufficient to cover any ~~documentary, stamp or similar issue or~~ transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common 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 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. The Company’s settlement of the ~~full~~ Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the ~~relevant~~ Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the ~~relevant~~ Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately ~~succeeding~~ following the corresponding Interest Payment Date; or (3) 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 Fundamental Change Repurchase Date as described in the immediately preceding sentence shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be, in each case solely for the purpose of receiving or participating in any dividend, distribution, issuance, share split or combination, tender or exchange offer or any other event that would lead to a Conversion Rate adjustment as described in Section 13.04. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common 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 on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP on the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected ~~(or is deemed to have elected)~~ Combination Settlement, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the ~~relevant~~ applicable Observation Period and any fractional shares remaining after such computation shall be paid in cash. (k) Notwithstanding anything to the contrary herein, no Holder shall be entitled to receive shares of Common Stock upon conversion to the extent (but only to the extent) that such receipt would cause such converting Holder to become, directly or indirectly, a “beneficial owner” (within the meaning of Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) of more than 5.0% of the shares of Common Stock outstanding at such time (the “Limitation”). Any purported delivery of shares of Common Stock upon conversion of Notes shall be void and have no effect to the extent (but only to the extent) that such delivery would result in the converting Holder becoming the beneficial owner of more than the Limitation. If any delivery of shares of Common Stock owed to a Holder upon conversion of Notes is not made, in whole or in part, as a result of the Limitation, the Company’s obligation to make such delivery shall not be extinguished and the Company shall deliver such shares as promptly as practicable after any such converting Holder gives notice to the Company that such delivery would not result in it being the beneficial owner of more than 5.0% of the shares of Common Stock outstanding at such time. The Limitation shall no longer apply following the effective date of any Fundamental Change.

Appears in 1 contract

Sources: Indenture (TCP Capital 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 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 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 the Company’s election, as set forth in this Section 14.02. (i) All conversions of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period, and all conversions for which the relevant Conversion Date occurs on or after June 115, ~~2018~~ 2030, shall be settled using the same ~~Settlement Method~~forms and amounts of consideration. (ii) Except for any conversions ~~that occur~~ of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period, and any conversions for which the relevant Conversion Date occurs on or after June 115, ~~2018 to the close of business on the Business Day immediately preceding the Maturity Date~~2030, the Company shall use the same ~~Settlement Method~~ forms and amounts of consideration for all conversions ~~occurring on~~ with the same Conversion Date, but the Company shall not have any obligation to use the same ~~Settlement Method~~ forms and amounts of consideration with respect to conversions ~~that occur on~~ with different Conversion ~~Days~~Dates. (iii) If, in respect of any Conversion Date (or any conversions of Called Notes for which the ~~period described in~~ relevant Conversion Date occurs during the ~~third immediately succeeding set of parentheses~~related Redemption Period or any conversions for which the relevant Conversion Date occurs on or after June 15, ~~as the case may be~~2030), the Company elects to ~~deliver~~ settle all or a ~~notice (the “Settlement Notice”)~~ portion of its Conversion Obligation in excess of the ~~relevant Settlement Method~~ principal portion of the Notes being converted in cash in respect of such Conversion Date (or such period, as the case may be), the ~~Company~~Company shall inform converting Holders, ~~through~~ the ~~Trustee, shall deliver~~ Trustee and the Conversion Agent of such election (the “Settlement ~~Notice to converting Holders~~ Notice”) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of (A) any conversions ~~occurring~~ of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period, in the related Notice of Redemption or (B) any conversions of Notes for which the relevant Conversion Date occurs on or after June 115, ~~2018~~2030, no later than June 15, 2030) and the ~~close~~ Company shall indicate in such Settlement Notice the percentage of ~~business on~~ the ~~Business Day immediately preceding June 1, 2018~~Conversion Obligation in excess of the principal portion of the Notes being converted that shall be paid in cash (the “Cash Percentage”). If the Company does not elect a ~~Settlement Method~~ Cash Percentage prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect a Cash ~~Settlement~~ Percentage with respect to any conversion on such Conversion Date or ~~Physical Settlement~~ during such period, and the 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 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~~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 Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement~~Amounts, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the Converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 consecutive Trading Days during the related Observation Period. (v) The Daily Net Settlement Amounts (if applicable) and the Daily Conversion Values ~~(if applicable)~~ shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts, the Daily Net Settlement Amounts or (if applicable) and the Daily Conversion ~~Values, as the case may be,~~ Values and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts, the Daily Net Settlement Amounts or (if applicable) and the Daily Conversion ~~Values, as the case may be,~~ Values and the amount of cash payable in lieu of delivering any fractional 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 (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a ~~facsimile~~ facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (~~and,~~ and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No ~~Notice of Conversion with respect to any~~ Notes may be ~~delivered~~ surrendered for conversion by a Holder thereof if such ~~Holder~~ ▇▇▇▇▇▇ has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 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. The 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. If any shares of Common Stock are due to a converting ~~Holders~~Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, ~~certificates or a book-entry transfer through the Depositary for~~ the full number of shares of Common Stock to which such Holder shall be ~~entitled~~ entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common 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 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. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of ~~Notes into a combination of cash and shares of Common 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 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 Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately ~~succeeding~~ following the corresponding Interest Payment Date; or (34) 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 (i) the Maturity Date, (ii) any Redemption Date or described in clause (2) of the immediately preceding sentence and (iii) any Fundamental Change Repurchase Date as described in clause (3) of the immediately preceding ~~sentence~~ sentence, as applicable, shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name ~~the certificate for~~ any shares of Common Stock ~~delivered~~ shall be issuable upon conversion ~~is registered~~ shall be treated as a stockholder of record as of the close of business on the ~~relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the~~ last Trading Day of the relevant Observation ~~Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be~~Period. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common 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 ~~on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP on~~ for the last Trading Day of the relevant Observation ~~Period (in the case of Combination Settlement)~~Period. For each Note surrendered for conversion, ~~if the Company has elected (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 (JBT Marel Corp)

Conversion Procedure; Settlement Upon Conversion. (a) ~~Subject~~ If (i) the Company has not received the requisite approval from its shareholders in accordance with Section 312.03 of The New York Stock Exchange Listed Company Manual to issue 20% or more of its Common Shares upon conversion of the Notes (the “2022 Notes Shareholder Approval”) or (ii) the Company has not received the requisite approval from its shareholders in accordance with Section 312.03 of The New York Stock Exchange Listed Company Manual to issue 20% or more of its Common Shares upon conversion of its 5.00% convertible senior notes due 2021 (the “2021 Notes Shareholder Approval” and, together with the 2022 Notes Shareholder Approval, the “Shareholder Approval”), in each case, prior to the relevant Conversion Date (or, if earlier, December 1, 2021), and subject to this ~~Section~~ ‎Section 14.02, ~~Section~~ ‎Section 14.03(b) and ~~Section~~ ‎Section 14.07(a), upon conversion of any Note, the Company shall pay to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, solely an amount of cash as if the Company had elected Cash Settlement as set forth in this ‎Section 14.02. If the Company has received Shareholder Approval prior to the relevant Conversion Date (or, if earlier, December 1, 2021), and subject to this ‎Section 14.02, ‎Section 14.03(b) and ‎Section 14.07(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), ~~shares of~~ Common ~~Stock~~Shares, together with cash, if applicable, in lieu of delivering any fractional ~~share of~~ Common ~~Stock~~ Share in accordance with subsection (j‎(j) of this ~~Section~~ ‎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(j) of this ~~Section~~ ‎Section 14.02 (“Combination Settlement”), at ~~the Company’s~~ its election, as set forth in this ~~Section~~ ‎Section 14.02. If the Company receives Shareholder Approval on any day, it shall so notify the Holders, the Trustee and the Conversion Agent within five Business Days of such approval. (i) All conversions for which the relevant Conversion Date occurs on or after ~~June~~ December 1, ~~2018~~ 2021 shall be settled using the same Settlement Method. For the avoidance of doubt, if the Company has not received Shareholder Approval prior to December 1, 2021, Cash Settlement shall apply to all conversions of Notes with a Conversion Date occurring on or after December 1, 2021. (ii) Except for any conversions ~~that occur~~ for which the relevant Conversion Date occurs on or after ~~June~~ December 1, ~~2018 to the close of business on the Business Day immediately preceding the Maturity Date~~2021, the Company shall use the same Settlement Method for all conversions ~~occurring on~~ with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions ~~that occur on~~ with different Conversion ~~Days~~Dates. (iii) IfFollowing the Company’s receipt of Shareholder Approval, if, in respect of any Conversion Date (or the period described in the third immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions ~~occurring~~ for which the relevant Conversion Date occurs on or after ~~June~~ December 1, ~~2018~~2021, no later than ~~the close of business on the Business Day immediately preceding June~~ December 1, ~~2018~~2021). If the Company has received Shareholder Approval and does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. (iv) ~~The~~ Subject to the Company’s receipt of Shareholder Approval as described in this ‎‎(a), 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 Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of ~~shares of~~ Common ~~Stock~~ Shares equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 100 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, ~~to the Converting Holder~~ in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 100 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional ~~share of~~ Common ~~Stock~~Share, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional ~~shares of~~ Common ~~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~~ ‎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 (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ~~shares of~~ Common ~~Stock~~ Shares to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, 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~~ ‎Section 14.02(h). The Trustee (~~and,~~ and if different, the Conversion Agent) shall notify the 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 ~~delivered~~ surrendered by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with ~~Section~~ ‎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. ~~The~~ Except as set forth in ‎‎Section 14.03(b) and ‎Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the 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 however that with respect to conversions for which Physical Settlement applies and the relevant Conversion Date occurs after the Regular Record Date immediately preceding the Maturity Date, the Company shall deliver and, if applicable, pay the consideration due in respect of the Conversion Obligation on the Maturity Date. If any ~~shares of~~ Common ~~Stock~~ Shares are due to converting Holders, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, ~~certificates or a book-entry transfer through the Depositary for~~ the full number of ~~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 Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any ~~shares of~~ Common ~~Stock~~ Shares upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the ~~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~~ ‎Section 14.04, 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 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. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and ~~shares of~~ Common ~~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 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 Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately ~~succeeding~~ following the corresponding Interest Payment Date; or (3) 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 Fundamental Change Repurchase Date as described in the immediately preceding sentence~~ shall receive the full interest payment due on the Maturity ~~Date or other applicable Interest Payment~~ Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the ~~certificate for any shares of~~ Common ~~Stock delivered~~ Shares shall be issuable upon conversion ~~is registered~~ shall be treated as a ~~stockholder~~ shareholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional ~~share of~~ Common ~~Stock~~ Share upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional ~~share of~~ Common ~~Stock~~ Share issuable upon conversion based on the Daily VWAP on for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP on for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected ~~(or is deemed to have elected)~~ Combination Settlement, the full number of shares that shall be 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 (Invacare Corp)

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 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 25 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(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 the Company’s election, as set forth in this Section ‎Section 14.02. (i) All conversions of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period, and all conversions for which the relevant Conversion Date occurs on or after ~~June~~ February 1, ~~2018~~ 2031 shall be settled using the same ~~Settlement Method~~forms and amounts of consideration. (ii) Except for any conversions ~~that occur~~ of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period, and any conversions for which the relevant Conversion Date occurs on or after ~~June~~ February 1, ~~2018 to the close of business on the Business Day immediately preceding the Maturity Date~~2031, the Company shall use the same ~~Settlement Method~~ forms and amounts of consideration for all conversions ~~occurring on~~ with the same Conversion Date, but the Company shall not have any obligation to use the same ~~Settlement Method~~ forms and amounts of consideration with respect to conversions ~~that occur on~~ with different Conversion ~~Days~~Dates. (iii) IfUnless the Company has made an Irrevocable Settlement Election, if, in respect of any Conversion Date (or any conversions of Called Notes for which the ~~period described in~~ relevant Conversion Date occurs during the ~~third immediately succeeding set of parentheses~~related Redemption Period or any conversions for which the relevant Conversion Date occurs on or after February 1, ~~as the case may be~~2031), the Company elects to ~~deliver~~ settle all or a ~~notice (the “Settlement Notice”)~~ portion of its Conversion Obligation in excess of the ~~relevant Settlement Method~~ principal portion of the Notes being converted in cash in respect of such Conversion Date (or such period, as the case may be), the ~~Company, through the Trustee,~~ Company shall ~~deliver such Settlement Notice to~~ inform converting Holders through (and upon a written request to) the Trustee of such election (the “Settlement Notice”) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of (A) any conversions ~~occurring~~ of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period, in the related Notice of Redemption or (B) any conversions of Notes for which the relevant Conversion Date occurs on or after ~~June~~ February 1, ~~2018~~2031, no later than ~~the close of business on the Business Day immediately preceding June~~ February 1, ~~2018~~2031) and the Company shall indicate in such Settlement Notice the percentage of the Conversion Obligation in excess of the principal portion of the Notes being converted that shall be paid in cash (the “Cash Percentage”). If the Company does not elect a ~~Settlement Method~~ Cash Percentage prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect a Cash ~~Settlement~~ Percentage with respect to any conversion on such Conversion Date or ~~Physical Settlement~~ during such period, and the Company shall be deemed to have elected ~~Combination~~ a Cash Percentage of 0% with respect to such conversion unless prior to such time the Company has made an Irrevocable Settlement ~~in respect~~ Election. For the avoidance of doubt, the Company’s failure to make a timely election of the Cash Percentage, as described above, shall not constitute a Default under this Indenture. Prior to February 1, 2031, the Company may, at its election, by notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee), irrevocably elect to satisfy its Conversion ~~Obligation, and the Specified Dollar Amount per $1,000 principal amount~~ Obligation with respect to all future conversions of Notes with a Conversion Date subsequent to the date of delivery of such notice with a specified Cash Percentage set forth in such notice (including, without limitation, a Cash Percentage of 0%) (such an election, an “Irrevocable Settlement Election”); provided that no such Irrevocable Settlement Election shall affect any Cash Percentage theretofore elected (or deemed to be ~~equal~~ elected) with respect 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 Notesany Note. If the Company ~~delivers a~~ makes an Irrevocable Settlement ~~Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount~~ Election, then, concurrently with providing notice to Holders of Notes in of such Irrevocable Settlement ~~Notice~~Election, the ~~Specified Dollar Amount per $1,000 principal amount of Notes~~ Company shall ~~be deemed to be $1,000~~either post the fixed Cash Percentage 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 “~~Daily Settlement ~~Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement~~Amounts, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the Converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 consecutive Trading Days during the related Observation Period. (v) The Daily Net Settlement Amounts (if applicable) and the Daily Conversion Values ~~(if applicable)~~ shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts, the Daily Net Settlement Amounts or (if applicable) and the Daily Conversion ~~Values, as the case may be,~~ Values and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the 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 (if applicable) and the Daily Conversion ~~Values, as the case may be,~~ Values and the amount of cash payable in lieu of delivering any fractional 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 (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a ~~facsimile~~ facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in ~~Section~~ ‎Section 14.02(h). The Trustee (~~and,~~ and if different, the Conversion Agent) shall notify the 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 ~~delivered~~ surrendered for conversion by a Holder thereof if such ~~Holder~~ ▇▇▇▇▇▇ has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with ~~Section~~ ‎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. The 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. If any shares of Common Stock are due to a converting ~~Holders~~Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, ~~certificates or a book-entry transfer through the Depositary for~~ the full number of shares of Common Stock to which such Holder shall be ~~entitled~~ entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax or other similar governmental charge due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common 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 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. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of ~~Notes into a combination of cash and shares of Common 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 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 Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately ~~succeeding~~ following the corresponding Interest Payment Date; or (34) 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 Fundamental Change Repurchase Date as described in the immediately preceding sentence~~ shall receive the full interest payment due on the Maturity Date ~~or other applicable Interest Payment Date~~ 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~~ shall be issuable upon conversion ~~is registered~~ shall be treated as a ~~stockholder~~ shareholder of record as of the close of business on the ~~relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the~~ last Trading Day of the relevant Observation ~~Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be~~Period. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common 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 ~~on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP on~~ for the last Trading Day of the relevant Observation ~~Period (in the case of Combination Settlement)~~Period. For each Note surrendered for conversion, ~~if the Company has elected (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 (CMS 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, 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 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 ~~the Company’s~~ its election, as set forth in this Section 14.02. (i) All conversions of Notes for which the relevant Conversion Date occurs on or after ~~June 1~~November 15, ~~2018~~ 2024 shall be settled using the same Settlement Method. (ii) Except for any conversions ~~that occur on or after June 1, 2018 to~~ of Notes described in the ~~close of business on~~ preceding clause (i) and in the ~~Business Day immediately preceding the Maturity Date~~following clause (iii), the Company shall use the same Settlement Method for all conversions ~~occurring on~~ of Notes with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions ~~that occur on~~ of Notes with different Conversion ~~Days~~Dates. (iii) If, in respect of any Conversion Date (or one of the ~~period~~ periods described in the third immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), it will inform Holders so converting, the ~~Company~~Trustee and the Conversion Agent, ~~through~~ of the ~~Trustee, shall deliver such Settlement Notice to converting Holders~~ settlement method it has selected 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 ~~occurring~~ of Notes for which the relevant Conversion Date occurs on or after ~~June 1~~November 15, ~~2018~~2024, no later than November 15, 2024). However, notwithstanding anything to the ~~close of business~~ contrary above, if the Company calls any Notes for redemption then (x) the Company will specify in the related Redemption Notice 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 prior to the second Business Day immediately preceding ~~June 1~~the related Redemption Date and (y) if the related Redemption Date occurs on or after November 15, ~~2018).~~ 2024, then such Settlement Method must be the same Settlement Method that applies to all conversions with a Conversion Date that occurs on or after November 15, 2024. (iv) If the Company does not elect a Settlement Method prior to the deadline set forth in the two immediately preceding ~~sentence~~sentences, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to any conversion on such Conversion Date or during such period, and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. (ivv) 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 Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 25 consecutive Trading Days during the ~~related~~ relevant Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the ~~Converting~~ converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 25 consecutive Trading Days during the ~~related~~ relevant Observation Period. (vvi) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common 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 (iA) 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) and (iiB) in the case of a Physical Note (1) complete, manually sign and deliver an ~~irrevocable~~ irrevocable, completed notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a ~~facsimile~~ facsimile, PDF or other electronic transmission thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer ~~documents~~ documents, (4) if required, pay all transfer and similar taxes as set forth in Section 14.02(d) and Section 14.02(e) and (45) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (~~and,~~ and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be ~~delivered~~ surrendered by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03. If a Holder submits its Notes for required repurchase, the Holder’s right to withdraw the Fundamental Change Repurchase Notice and convert the Notes that are subject to repurchase will terminate at the close of business on the second 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. Any exercise by a Holder of its conversion rights in respect of a Note shall be irrevocable. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. ~~The~~ Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the third Business Day immediately following the relevant Conversion Date, if the Company elects Physical ~~Settlement~~Settlement (unless such Conversion Date is on or after the Regular Record Date immediately preceding the Maturity Date, in which case the Company shall deliver the consideration due in respect of such Conversion Obligation on the Maturity Date), 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. If any shares of Common Stock are due to converting Holders, the 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 Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall ~~execute~~ execute, and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so ~~surrendered~~ surrendered, a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common 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 (if other than the Trustee) at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions ~~following~~ after the close of business on the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the second Business Day immediately ~~succeeding~~ following the corresponding Interest Payment Date; or (34) to the extent of any Defaulted Amounts, if any Defaulted Amounts ~~exists~~ exist at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record at the close of business on the Regular Record Date immediately preceding (i) the Maturity Date, (ii) any Redemption Date or described in clause (2) of the immediately preceding sentence and (iii) any Fundamental Change Repurchase Date as described in clause (3) of the immediately preceding sentence shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment ~~Date~~ Date, regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the ~~certificate for any~~ shares of Common Stock ~~delivered~~ shall be issuable upon conversion ~~is registered~~ shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common 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 on 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 on for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected ~~(or is deemed to have elected)~~ Combination Settlement, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation ~~Period~~ Period, and any fractional shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Sources: Indenture (Teladoc, 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 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 ~~the Company’s~~ its election, as set forth in this Section ~~14.02~~13.02. (i) All conversions ~~for which the relevant Conversion Date occurs~~ occurring on or after June 115, ~~2018~~ 2019 shall be settled using the same Settlement Method. (ii) ~~Except for any conversions that occur on or after~~ Prior to June 115, ~~2018 to the close of business on the Business Day immediately preceding the Maturity Date~~2019, the Company shall use the same Settlement Method for all conversions occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions that occur on different Conversion ~~Days~~Dates. (iii) If, in respect of any Conversion Date (or any conversions of Notes occurring during the period ~~described in~~ beginning on, and including, June 15, 2019 and ending on, and including, the ~~third~~ Scheduled Trading Day immediately ~~succeeding set of parentheses~~preceding the Maturity Date, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions occurring on or after June 115, ~~2018~~2019, no later than ~~the close of business on the Business Day immediately preceding~~ June 115, ~~2018~~2019). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar ~~Amount per $1,000 principal amount of Notes~~Amount. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount ~~per $1,000 principal amount of Notes~~ in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. (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 Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted ~~cash in~~ an amount in cash equal to the sum of the Daily Conversion Values for each of the 50 15 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, ~~to the Converting Holder~~ in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 15 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of ~~delivering~~ any fractional ~~share of Common Stock~~share, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of ~~delivering~~ fractional shares of Common 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 (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay all taxes or duties, if any, and (5) if required, 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). The Trustee (and, if different, the Conversion Agent) shall notify the 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 ~~delivered~~ surrendered by a Holder thereof if such ~~Holder~~ ▇▇▇▇▇▇ has also delivered a Fundamental Change Repurchase Notice to the ~~Company~~ Paying Agent 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. ~~The~~ Except as provided in Section 13.03(b) and in Section 13.07, the 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. If any shares of Common Stock are due to converting Holders, the 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 portion of the Company’s Conversion ~~Obligation~~Obligation that consists of shares of Common Stock, and, on or prior to such issuance, the Company shall give the Conversion Agent notice of the number of shares of Common Stock being so issued and the method by which the issuance shall take place. Any required funds due to a converting Holder in connection with a Cash Settlement or Combination Settlement shall be delivered to the Paying Agent in accordance with the procedures set forth in Section 14.03. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment by the converting Holder of a sum sufficient to cover any ~~documentary, stamp or similar issue or~~ transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common 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 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. The Company’s settlement of the ~~full~~ Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the ~~relevant~~ Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the ~~relevant~~ Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately ~~succeeding~~ following the corresponding Interest Payment Date; or (3) 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 Fundamental Change Repurchase Date as described in the immediately preceding sentence shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be, in each case solely for the purpose of receiving or participating in any dividend, distribution, issuance, share split or combination, tender or exchange offer or any other event that would lead to a Conversion Rate adjustment as described in Section 13.04. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common 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 on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP on the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected ~~(or is deemed to have elected)~~ Combination Settlement, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the ~~relevant~~ applicable Observation Period and any fractional shares remaining after such computation shall be paid in cash. (k) Notwithstanding anything to the contrary herein, no Holder shall be entitled to receive shares of Common Stock upon conversion to the extent (but only to the extent) that such receipt would cause such converting Holder to become, directly or indirectly, a “beneficial owner” (within the meaning of Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) of more than 5.0% of the shares of Common Stock outstanding at such time (the “Limitation”). Any purported delivery of shares of Common Stock upon conversion of Notes shall be void and have no effect to the extent (but only to the extent) that such delivery would result in the converting Holder becoming the beneficial owner of more than the Limitation. If any delivery of shares of Common Stock owed to a Holder upon conversion of Notes is not made, in whole or in part, as a result of the Limitation, the Company’s obligation to make such delivery shall not be extinguished and the Company shall deliver such shares as promptly as practicable after any such converting Holder gives notice to the Company that such delivery would not result in it being the beneficial owner of more than 5.0% of the shares of Common Stock outstanding at such time. The Limitation shall no longer apply following the effective date of any Fundamental Change.

Appears in 1 contract

Sources: Indenture (TCP Capital 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 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 ~~the Company’s~~ its election, as set forth in this Section 14.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~June~~ May 1, ~~2018~~ 2024, and all conversions for which the Conversion Date occurs after the Company’s issuance of a Redemption Notice and prior to the related Redemption Date, shall be settled using the same Settlement Method. (ii) Except for any conversions ~~that occur~~ for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes but prior to the related Redemption Date, and any conversions for which the relevant Conversion Date occurs on or after ~~June~~ May 1, ~~2018 to the close of business on the Business Day immediately preceding the Maturity Date~~2024, the Company shall use the same Settlement Method for all conversions occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions that occur on different Conversion ~~Days~~Dates. (iii) If, in respect of any Conversion Date (or one of the ~~period~~ periods described in the ~~third~~ fourth immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the ~~Company, through the Trustee,~~ Company shall deliver such Settlement Notice to converting ~~Holders~~ Holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions ~~occurring~~ 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 ~~June~~ May 1, ~~2018~~2024, no later than the close of business on the ~~Business~~ Scheduled Trading Day immediately preceding ~~June~~ May 1, ~~2018~~2024). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement for such conversion and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes to be converted shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. Notwithstanding anything to the contrary above, if the Company calls any Notes for redemption, and the related Redemption Date is on or after May 1, 2024, then 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 shall be the same Settlement Method that applies to all conversions with a Conversion Date that occurs on or after May 1, 2024. (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 Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion ~~Date~~Date (plus cash in lieu of any fractional share of Common Stock issuable upon conversion); (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 40 consecutive VWAP Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, ~~to the Converting Holder~~ in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 40 consecutive VWAP Trading Days during the related Observation ~~Period~~Period (plus cash in lieu of any fractional share of Common Stock issuable upon conversion). (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common 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 payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and/or all transfer or similar taxes described herein, and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a ~~facsimile~~ facsimile, PDF or other electronic transmission thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h); and (5) if required, pay any transfer or similar taxes as described herein. The Trustee (~~and,~~ and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on as soon as practical, but in any event, not later than the Trading Day immediately following the Conversion ~~Date for such conversion~~Date. No Notice of Conversion with respect to any Notes may be ~~delivered~~ surrendered by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 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. ~~The~~ Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the ~~third~~ second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the ~~third~~ second Business Day immediately following the last VWAP Trading Day of the ~~relevant~~ Observation Period, in the case of any other Settlement Method. If any shares of Common Stock are due to a converting ~~Holders~~Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, ~~certificates or a book-entry transfer through the Depositary for~~ the full number of shares of Common Stock to which such Holder shall be ~~entitled~~ entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common 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 Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below, and the Company shall not adjust the Conversion Rate for any accrued and unpaid interest on the Notes. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but 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 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 of the Notes following the close of business on the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the third Scheduled Trading Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the second Business Day immediately ~~succeeding~~ following the corresponding Interest Payment Date; or (34) 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 Fundamental Change Repurchase Date as or Redemption Date, in each case described ~~in the immediately preceding sentence~~ above, shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the ~~certificate for any~~ shares of Common Stock ~~delivered~~ shall be issuable upon conversion ~~is registered~~ shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last VWAP Trading Day of the relevant Observation Period (if the 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. (j) The 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 on 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 on for the last VWAP Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (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 (Blackline, 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 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 50 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 the Company’s election, as set forth in this Section ‎Section 14.02. (i) All conversions of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period, and all conversions for which the relevant Conversion Date occurs on or after June 115, ~~2018~~ 2028, shall be settled using the same ~~Settlement Method~~forms and amounts of consideration. (ii) Except for any conversions ~~that occur~~ of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period, and any conversions for which the relevant Conversion Date occurs on or after June 115, ~~2018 to the close of business on the Business Day immediately preceding the Maturity Date~~2028, the Company shall use the same ~~Settlement Method~~ forms and amounts of consideration for all conversions ~~occurring on~~ with the same Conversion Date, but the Company shall not have any obligation to use the same ~~Settlement Method~~ forms and amounts of consideration with respect to conversions ~~that occur on~~ with different Conversion ~~Days~~Dates. (iii) If, in respect of any Conversion Date (or any conversions of Called Notes for which the ~~period described in~~ relevant Conversion Date occurs during the ~~third immediately succeeding set of parentheses~~related Redemption Period or any conversions for which the relevant Conversion Date occurs on or after June 15, ~~as the case may be~~2028), the Company elects to ~~deliver~~ settle all or a ~~notice (the “Settlement Notice”)~~ portion of its Conversion Obligation in excess of the ~~relevant Settlement Method~~ principal portion of the Notes being converted in cash in respect of such Conversion Date (or such period, as the case may be), the ~~Company~~Company shall inform converting Holders, ~~through~~ the Trustee and the Conversion Agent (if other than the Trustee~~, shall deliver~~ ) of such election (the “Settlement ~~Notice to converting Holders~~ Notice”) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of (A) any conversions ~~occurring~~ of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period, in the related Notice of Redemption or (B) any conversions of Notes for which the relevant Conversion Date occurs on or after June 115, ~~2018~~2028, no later than June 15, 2028) and the ~~close~~ Company shall indicate in such Settlement Notice the percentage of ~~business on~~ the ~~Business Day immediately preceding June 1, 2018~~Conversion Obligation in excess of the principal portion of the Notes being converted that shall be paid in cash (the “Cash Percentage”). If the Company does not elect a ~~Settlement Method~~ Cash Percentage prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect a Cash ~~Settlement~~ Percentage with respect to any conversion on such Conversion Date or ~~Physical Settlement~~ during such period, and the 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 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~~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 Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement~~Amounts, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the Converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 consecutive Trading Days during the related Observation Period. (v) The Daily Net Settlement Amounts (if applicable) and the Daily Conversion Values ~~(if applicable)~~ shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts, the Daily Net Settlement Amounts or (if applicable) and the Daily Conversion ~~Values, as the case may be,~~ Values and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts, the Daily Net Settlement Amounts or (if applicable) and the Daily Conversion ~~Values, as the case may be,~~ Values and the amount of cash payable in lieu of delivering any fractional 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 (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a ~~facsimile~~ facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in ~~Section~~ ‎Section 14.02(h). The Trustee (~~and,~~ and if different, the Conversion Agent) shall notify the 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 ~~delivered~~ surrendered for conversion by a Holder thereof if such ~~Holder~~ ▇▇▇▇▇▇ has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with ~~Section~~ ‎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. The 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. If any shares of Common Stock are due to a converting ~~Holders~~Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, ~~certificates or a book-entry transfer through the Depositary for~~ the full number of shares of Common Stock to which such Holder shall be ~~entitled~~ entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common 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 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. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of ~~Notes into a combination of cash and shares of Common 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 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 Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately ~~succeeding~~ following the corresponding Interest Payment Date; or (34) 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 (i) the Maturity Date, (ii) any Redemption Date or described in clause (2) of the immediately preceding sentence and (iii) any Fundamental Change Repurchase Date as described in clause (3) of the immediately preceding ~~sentence~~ sentence, as applicable, shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name ~~the certificate for~~ any shares of Common Stock ~~delivered~~ shall be issuable upon conversion ~~is registered~~ shall be treated as a stockholder of record as of the close of business on the ~~relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the~~ last Trading Day of the relevant Observation ~~Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be~~Period. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common 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 ~~on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP on~~ for the last Trading Day of the relevant Observation ~~Period (in the case of Combination Settlement)~~Period. For each Note surrendered for conversion, ~~if the Company has elected (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 (CSG Systems International 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 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 ~~the Company’s~~ its election, as set forth in this Section ~~14.02~~13.02. (i) All conversions ~~for which the relevant Conversion Date occurs~~ occurring on or after ~~June~~ August 1, ~~2018 shall~~ 2021shall be settled using the same Settlement Method. (ii) ~~Except for any conversions that occur on or after June~~ Prior to August 1, ~~2018 to the close of business on the Business Day immediately preceding the Maturity Date~~2021, the Company shall use the same Settlement Method for all conversions occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions that occur on different Conversion ~~Days~~Dates. (iii) If, in respect of any Conversion Date (or any conversions of Notes occurring during the period ~~described in~~ beginning on, but excluding, August 1, 2021 and ending on, and including, the ~~third~~ Business Day immediately ~~succeeding set of parentheses~~preceding the Maturity Date, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions occurring on or after ~~June~~ August 1, ~~2018~~2021, no later than ~~the close of business on the Business Day immediately preceding June~~ August 1, ~~2018~~2021). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar ~~Amount per $1,000 principal amount of Notes~~Amount. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount ~~per $1,000 principal amount of Notes~~ in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. (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 Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted ~~cash in~~ an amount in cash equal to the sum of the Daily Conversion Values for each of the 50 15 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, ~~to the Converting Holder~~ in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 15 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of ~~delivering~~ any fractional ~~share of Common Stock~~share, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of ~~delivering~~ fractional shares of Common 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 (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~14.02(h~~13.02(h). The Trustee (and, if different, the Conversion Agent) shall notify the 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 ~~delivered~~ surrendered by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company (or Paying Agent) 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. ~~The~~ Except as provided in Section 13.03(b) and in Section 13.07, the 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. If any shares of Common Stock are due to converting Holders, the 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 portion of the Company’s Conversion ~~Obligation~~Obligation that consists of shares of Common Stock, and, on or prior to such issuance, the Company shall give the Conversion Agent notice of the number of shares of Common Stock being so issued and the method by which the issuance shall take place. Any required funds due to a converting Holder in connection with a Cash Settlement or Combination Settlement shall be delivered to the Paying Agent and such Holder, or such Holder’s nominee or nominees, in accordance with the same procedures that apply in connection with the payment of the Fundamental Change Repurchase Price as set forth in Section 14.03. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment by the converting Holder of a sum sufficient to cover any ~~documentary, stamp or similar issue or~~ transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common 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 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. The Company’s settlement of the ~~full~~ Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the ~~relevant~~ Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the ~~relevant~~ Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately ~~succeeding~~ following the corresponding Interest Payment Date; or (3) 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 Fundamental Change Repurchase Date as described in the immediately preceding sentence shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects (or is deemed to have elected) to satisfy the related Conversion Obligation by Combination Settlement), as the case may be, in each case solely for the purpose of receiving or participating in any dividend, distribution, issuance, share split or combination, tender or exchange offer or any other event that would lead to a Conversion Rate adjustment as described in Section 13.04. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common 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 on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP on the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the ~~relevant~~ applicable Observation Period and any fractional shares remaining after such computation shall be paid in cash. (k) Notwithstanding anything to the contrary herein, no Holder shall be entitled to receive shares of Common Stock upon conversion to the extent (but only to the extent) that such receipt would cause such converting Holder to become, directly or indirectly, a “beneficial owner” (within the meaning of Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) of more than 5.0% of the shares of Common Stock outstanding at such time (the “Limitation”). Any purported delivery of shares of Common Stock upon conversion of Notes shall be void and have no effect to the extent (but only to the extent) that such delivery would result in the converting Holder becoming the beneficial owner of more than the Limitation. If any delivery of shares of Common Stock owed to a Holder upon conversion of Notes is not made, in whole or in part, as a result of the Limitation, the Company’s obligation to make such delivery shall not be extinguished and the Company shall deliver such shares as promptly as practicable after any such converting Holder gives notice to the Company that such delivery would not result in it being the beneficial owner of more than 5.0% of the shares of Common Stock outstanding at such time. The Limitation shall no longer apply following the effective date of any Fundamental Change.

Appears in 1 contract

Sources: Indenture (Hercules Capital, 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 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(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 ~~the Company’s~~ its election, as set forth in this ~~Section~~ ‎Section 14.02. (i) All conversions of Notes for which the relevant Conversion Date occurs on or after ~~June~~ December 1, ~~2018~~ 2026 shall be settled using the same Settlement Method. (ii) Except for any conversions ~~that occur on or after June 1, 2018 to~~ of Notes described in the ~~close of business on~~ preceding clause (i) and in the ~~Business Day immediately preceding the Maturity Date~~following clause (iii), the Company shall use the same Settlement Method for all conversions ~~occurring on~~ of Notes with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions ~~that occur on~~ of Notes with different Conversion ~~Days~~Dates. (iii) If, in respect of any Conversion Date (or one of the ~~period~~ periods described in the third immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), it will inform Holders so converting, the ~~Company~~Trustee and the Conversion Agent, ~~through~~ of the ~~Trustee, shall deliver such Settlement Notice to converting Holders~~ settlement method it has selected 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 ~~occurring~~ of Notes for which the relevant Conversion Date occurs on or after ~~June~~ December 1, ~~2018~~2026, no later than December 1, 2026). However, notwithstanding anything to the ~~close of business~~ contrary above, if the Company calls any Notes for redemption then (x) the Company will specify in the related Redemption Notice 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 prior to the second Business Day immediately preceding ~~June~~ the related Redemption Date and (y) if the related Redemption Date occurs on or after December 1, ~~2018).~~ 2026, then such Settlement Method must be the same Settlement Method that applies to all conversions with a Conversion Date that occurs on or after December 1, 2026. (iv) If the Company does not elect a Settlement Method prior to the deadline set forth in the two immediately preceding ~~sentence~~sentences, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to any conversion on such Conversion Date or during such period, and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. (ivv) 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 Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 25 consecutive Trading Days during the ~~related~~ relevant Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the ~~Converting~~ converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 25 consecutive Trading Days during the ~~related~~ relevant Observation Period. (vvi) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common 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 (iA) 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~~ ‎Section 14.02(h) and (iiB) in the case of a Physical Note (1) complete, manually sign and deliver an ~~irrevocable~~ irrevocable, completed notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a ~~facsimile~~ facsimile, PDF or other electronic transmission thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer ~~documents~~ documents, (4) if required, pay all transfer and similar taxes as set forth in ‎Section 14.02(d) and ‎Section 14.02(e) and (45) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in ~~Section~~ ‎Section 14.02(h). The Trustee (~~and,~~ and if different, the Conversion Agent) shall notify the 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 ~~delivered~~ surrendered by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with ~~Section~~ ‎Section 15.03. If a Holder submits its Notes for required repurchase, the Holder’s right to withdraw the Fundamental Change Repurchase Notice and convert the Notes that are subject to repurchase will terminate at the close of business on the second 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. Any exercise by a Holder of its conversion rights in respect of a Note shall be irrevocable. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b‎(b) above. ~~The~~ Except as set forth in ‎‎Section 14.03(b) and ‎Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on or, at the Company’s option, before the third Business Day immediately following the relevant Conversion Date, if the Company elects Physical ~~Settlement~~Settlement (unless such Conversion Date is on or after the Regular Record Date immediately preceding the Maturity Date, in which case the Company shall deliver the consideration due in respect of such Conversion Obligation on or, at the Company’s option, before the Maturity Date), or on or, at the Company’s option, before the third Business Day immediately following the last Trading Day of the ~~relevant~~ Observation Period, in the case of any other Settlement Method. If any shares of Common Stock are due to converting Holders, the 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 Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall ~~execute~~ execute, and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so ~~surrendered~~ surrendered, a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common 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 (if other than the Trustee) at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions ~~following~~ after the close of business on the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the second Business Day immediately ~~succeeding~~ following the corresponding Interest Payment Date; or (34) to the extent of any Defaulted Amounts, if any Defaulted Amounts ~~exists~~ exist at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record at the close of business on the Regular Record Date immediately preceding (i) the Maturity Date, (ii) any Redemption Date or described in clause (2) of the immediately preceding sentence and (iii) any Fundamental Change Repurchase Date as described in clause (3) of the immediately preceding sentence shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment ~~Date~~ Date, regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the ~~certificate for any~~ shares of Common Stock ~~delivered~~ shall be issuable upon conversion ~~is registered~~ shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common 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 on 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 on for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected ~~(or is deemed to have elected)~~ Combination Settlement, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation ~~Period~~ Period, and any fractional shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Sources: Indenture (Teladoc Health, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~14.02,~~ 4.02 and Section ~~14.03(b~~4.03(b) and Section ~~14.07(a~~4.07(a), upon conversion of any Note, the Company ~~shall~~ shall, at its election, pay or deliver, as the case may be, to the converting ~~Holder~~Holder of the Notes, 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 the Company’s election,~~ as set forth in this Section ~~14.02~~4.02. (i) All conversions ~~for which the relevant Conversion Date occurs~~ occurring on or after ~~June~~ October 1, 2018 shall be settled using the same ~~Settlement Method. (ii) Except for any conversions that occur on or after June 1, 2018 to the close~~ relative proportion of ~~business on the Business Day immediately preceding the Maturity Date, the Company shall use the same Settlement Method for~~ cash and/or shares of Common Stock as all conversions occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions that occur on different Conversion Days. (iii) If, in respect of any Conversion Date (or the period described in the third immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any other conversions occurring on or after ~~June~~ October 1, 2018. If the Company elects a Settlement Method for conversions occurring on or after October 1, 2018, the Company shall deliver notice to Holders through the Conversion Agent of such Settlement Method the Company has selected no later than ~~the close of business on the Business Day immediately preceding June~~ October 1, 2018). If the Company does not timely elect a Settlement ~~Method prior to the deadline set forth in the immediately preceding sentence~~Method, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement for that date and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount ~~per $1,000 principal amount of Notes~~ shall be equal to $1,000. ~~Such~~ If the Company has timely elected Combination Settlement ~~Notice shall specify~~ in respect of any conversion, but fails to 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, the Specified Dollar Amount shall be deemed to be $1,000. (ii) Prior to October 1, 2018, the Company shall use the same Settlement Method (including the same relevant proportion of cash and/or shares of Common Stock) for all conversions occurring on the same Conversion Date. Except for any conversions that occur on or after October 1, 2018, the Company shall not have any obligation to use the same Settlement Method with respect to conversions that occur on different Conversion Dates. (iii) Prior to October 1, 2018, if the Company elects a Settlement Method, the Company shall deliver notice to converting Holders through the Conversion Agent of such Settlement Method the Company has selected no later than the close of business on the second Trading Day immediately following the relevant Conversion Date. If the Company ~~delivers~~ does not timely elect a Settlement ~~Notice electing~~ Method in respect of a particular Conversion Date, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement for that date and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion ~~Obligation but does not indicate a~~ Obligation, and the Specified Dollar Amount ~~per~~ shall be equal to $~~1,000 principal amount~~ 1,000. If the Company has timely elected Combination Settlement in respect of ~~Notes in~~ any such ~~Settlement Notice~~conversion, but fails to notify the Conversion Agent of the Specified Dollar Amount per $1,000 principal amount of ~~Notes~~ Notes, the Specified Dollar Amount shall be deemed to be $1,000. (iv) 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 Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate ~~in effect~~ on the Conversion ~~Date~~Date (plus cash in lieu of any fractional share of Common Stock issuable upon conversion); (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 20 consecutive VWAP Trading Days during the ~~related~~ relevant Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or and deliver, ~~as the case may be~~if applicable, to the ~~Converting~~ converting Holder in respect of each $1,000 principal amount of Notes being ~~converted,~~ converted a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 20 consecutive VWAP Trading Days during the ~~related~~ relevant Observation ~~Period~~Period (plus cash in lieu of any fractional share of Common Stock issuable upon conversion). (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, ~~and~~ and, if applicable, the amount of cash payable in lieu of ~~delivering~~ any fractional ~~share of Common Stock~~share, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, ~~and~~ 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: (i1) ~~in the case of a Global Note,~~ comply with the ~~procedures of the Depositary in effect at that time~~ Applicable Procedures; and, (2) if required, 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~~ 4.02(g); and (ii) in To convert a Certificated Note, the ~~case of a Physical Note~~ Holder must: (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile thereof) (a “Notice of Conversion”) ~~at the office of the Conversion Agent and state in writing therein the principal amount of Notes~~ to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, ; (~~3) if required, furnish appropriate endorsements and transfer documents and (4~~2) if required, 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~~4.02(g); (3) if required, furnish appropriate endorsements and transfer documents; and (4) if required, pay all documentary, stamp or similar issue or transfer tax as set forth in Section 4.02(d) and Section 4.02(e). The Trustee (~~and,~~ and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 4 on the Conversion Date for such conversion. No ~~Notice of Conversion with respect to any~~ Holder may surrender Notes ~~may be delivered by a Holder thereof~~ for conversion if such ~~Holder~~ ▇▇▇▇▇▇ has also delivered a Fundamental Change ~~Repurchase~~ Purchase Notice to the Company in respect of such Notes and ~~has~~ not validly withdrawn such Fundamental Change ~~Repurchase~~ Purchase Notice (or, in the case of a Global Note, has complied with the Applicable Procedures with respect to such a withdrawal) in accordance with Section ~~15.03~~5.02. If more than one Note shall be surrendered for conversion at one time by the same ~~Holder~~Holder of the Notes, 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. (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 of the Notes has complied with the requirements set forth in ~~subsection (b~~Section 4.02(b) above. ~~The~~ Subject to the provisions of Section 4.03(b) and Section 4.07(a), the Company shall pay or deliver, as the case may be, the ~~consideration~~ Settlement Amount due (including, if applicable, any cash in lieu of fractional shares) in respect of the Conversion Obligation on no later than: (i) the third Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement~~, or on~~ ; or (ii) the third Business Day immediately following the last VWAP Trading Day of the relevant Observation Period, in if the ~~case of any other~~ Company elects Cash Settlement ~~Method~~or if the Company elects or is deemed to elect Combination Settlement. If any shares of Common Stock are due to converting ~~Holders~~Holders of the Notes, the 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 (in the case of converted Certificated Notes) or a book-entry transfer through the Depositary (in the case of converted Global Notes) for the full number of shares of Common Stock to which such Holder shall be entitled in satisfaction of the Company’s Conversion Obligation. (d) In case any Certificated Note shall be surrendered for partial conversion, in $1,000 principal amount or an integral multiple thereof, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder of the Notes but, if required by the Company or Trustee, with payment of a sum sufficient to cover any ~~documentary, stamp or similar issue or~~ transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder of the Notes submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the ~~issue~~ issuance of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares of Common Stock to be issued in a name other than ~~the~~ such Holder’s name, in which case ~~the~~ such Holder shall pay that tax. The ~~Conversion Agent~~ Company or its agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than ~~the Holder~~such ▇▇▇▇▇▇’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 Note Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (hg) Upon ~~conversion~~conversion of a Note, a the converting Holder shall not receive any ~~separate~~ additional cash payment ~~for~~ or additional shares of Common Stock representing accrued and unpaid interest, if any, except as set forth ~~below~~in the paragraph below and in Section 4.01(c). ~~The~~ Except as provided in Section 4.01(c), the Company’s ~~settlement~~ payment or delivery, as the case may be, of the ~~full Conversion Obligation~~ Settlement Amount upon conversion of any Note shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than ~~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~~ forfeited (except in the ~~cash paid upon such conversion~~circumstances provided in Section 4.01(c). Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date for the payment of interest, but prior to the open of business on the immediately following Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date ~~will~~ shall be entitled to 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 (whether or not the Holder was a Holder of record on the Regular Record Date) must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment ~~shall~~ need be ~~required~~ made (1) if the Notes are surrendered for ~~conversions~~ conversion following the Regular Record Date immediately preceding the Maturity Date; ; (2) if the Company has specified a Fundamental Change ~~Repurchase~~ Purchase Date that is after a Regular Record Date and on or prior to the corresponding Interest Payment Date; (3) if the Company has specified a Redemption Date in accordance with Section 2.03 that is after a Regular Record Date and on or prior to the Business Day immediately ~~succeeding~~ following the corresponding Interest Payment Date; or or (34) 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~~ For the avoidance of doubt, all Holders ~~of record~~ on the Regular Record Date immediately preceding the Maturity Date ~~or any Fundamental Change Repurchase Date as described in the immediately preceding sentence~~ shall receive and retain the full interest payment due on the Maturity Date ~~or other applicable Interest Payment Date~~ regardless of whether their Notes ~~have been~~ are converted following such Regular Record Date. (ih) The Person in whose name ~~the certificate for~~ any shares of Common Stock delivered upon conversion is registered shall ~~be treated as a stockholder~~ become the holder of record of such shares as of the close of business on (i) the relevant Conversion Date (if the Company elects ~~to satisfy the related Conversion Obligation by~~ Physical ~~Settlement~~Settlement or (ii) or the last VWAP Trading Day of the relevant Observation Period (if the Company elects or is deemed to ~~satisfy the related Conversion Obligation by~~ elect Combination Settlement~~), as the case may be~~. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion; provided that (a) the converting Holder shall have the right to receive the Settlement Amount due upon conversion and (b) in the case of a conversion between a Regular Record Date and the corresponding Interest Payment Date, the Holder of record as of the close of business on such Regular Record Date shall have the right to receive the interest payable on such Interest Payment Date, in accordance with Section 4.02(g). (ji) The 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 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 on the last VWAP Trading Day of the relevant Observation Period ~~(in~~ if the ~~case of~~ Company elects or is deemed to elect Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to ~~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 remaining after such computation shall be paid in cash.

Appears in 1 contract

Sources: Seventh Supplemental Indenture (United States Steel 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 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 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 the Company’s election, as set forth in this Section 14.02. (i) All conversions of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period, and all conversions for which the relevant Conversion Date occurs on or after June 1, ~~2018~~ 2028, shall be settled using the same ~~Settlement Method~~forms and amounts of consideration. (ii) Except for any conversions ~~that occur~~ of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period, and any conversions for which the relevant Conversion Date occurs on or after June 1, ~~2018 to the close of business on the Business Day immediately preceding the Maturity Date~~2028, the Company shall use the same ~~Settlement Method~~ forms and amounts of consideration for all conversions ~~occurring on~~ with the same Conversion Date, but the Company shall not have any obligation to use the same ~~Settlement Method~~ forms and amounts of consideration with respect to conversions ~~that occur on~~ with different Conversion ~~Days~~Dates. (iii) If, in respect of any Conversion Date (or any conversions of Called Notes for which the ~~period described in~~ relevant Conversion Date occurs during the ~~third immediately succeeding set of parentheses~~related Redemption Period or any conversions for which the relevant Conversion Date occurs on or after June 1, ~~as the case may be~~2028), the Company elects to ~~deliver~~ settle all or a ~~notice (the “Settlement Notice”)~~ portion of its Conversion Obligation in excess of the ~~relevant Settlement Method~~ principal portion of the Notes being converted in cash in respect of such Conversion Date (or such period, as the case may be), the ~~Company, through the Trustee,~~ Company shall ~~deliver such Settlement Notice to~~ inform converting Holders through (and upon a written request to) the Trustee of such election (the “Settlement Notice”) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of (A) any conversions ~~occurring~~ of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period, in the related Notice of Redemption or (B) any conversions of Notes for which the relevant Conversion Date occurs on or after June 1, ~~2018~~2028, no later than ~~the close of business on the Business Day immediately preceding~~ June 1, ~~2018~~2028) and the Company shall indicate in such Settlement Notice the percentage of the Conversion Obligation in excess of the principal portion of the Notes being converted that shall be paid in cash (the “Cash Percentage”). If the Company does not elect a ~~Settlement Method~~ Cash Percentage prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect a Cash ~~Settlement~~ Percentage with respect to any conversion on such Conversion Date or ~~Physical Settlement~~ during such period, and the 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 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~~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 Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement~~Amounts, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the Converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 consecutive Trading Days during the related Observation Period. (v) The Daily Net Settlement Amounts (if applicable) and the Daily Conversion Values ~~(if applicable)~~ shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts, the Daily Net Settlement Amounts or (if applicable) and the Daily Conversion ~~Values, as the case may be,~~ Values and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the 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 (if applicable) and the Daily Conversion ~~Values, as the case may be,~~ Values and the amount of cash payable in lieu of delivering any fractional 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 (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a ~~facsimile~~ facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (~~and,~~ and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No ~~Notice of Conversion with respect to any~~ Notes may be ~~delivered~~ surrendered for conversion by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 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. The 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. If any shares of Common Stock are due to a converting ~~Holders~~Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, ~~certificates or a book-entry transfer through the Depositary for~~ the full number of shares of Common Stock to which such Holder shall be ~~entitled~~ entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax or other similar governmental charge due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common 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 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. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of ~~Notes into a combination of cash and shares of Common 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 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 Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately ~~succeeding~~ following the corresponding Interest Payment Date; or (34) 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 Fundamental Change Repurchase Date as described in the immediately preceding sentence~~ shall receive the full interest payment due on the Maturity Date ~~or other applicable Interest Payment Date~~ 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~~ shall be issuable upon conversion ~~is registered~~ shall be treated as a stockholder of record as of the close of business on the ~~relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the~~ last Trading Day of the relevant Observation ~~Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be~~Period. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common 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 ~~on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP on~~ for the last Trading Day of the relevant Observation ~~Period (in the case of Combination Settlement)~~Period. For each Note surrendered for conversion, ~~if the Company has elected (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 (Array Technologies, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~14.02~~8.02, Section ~~14.03(b~~8.03(b) and Section ~~14.07(a~~8.07(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common 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~~ 8.02 (“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 (ji) of this Section ~~14.02~~ 8.02 (“Combination Settlement”), at ~~the Company’s~~ its election, as set forth in this Section ~~14.02~~8.02. (i) All conversions ~~for which the relevant Conversion Date occurs~~ occurring on or after ~~June~~ April 1, ~~2018~~ 2017 shall be settled using the same Settlement Method. (ii) ~~Except for any~~ With respect to conversions ~~that occur on or after June~~ occurring prior to April 1, ~~2018 to the close of business on the Business Day immediately preceding the Maturity Date~~2017, the Company shall use the same Settlement Method for all conversions occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions that occur on different Conversion ~~Days~~Dates. (iii) ~~If, in respect of any Conversion Date (or~~ If the ~~period described in the third immediately succeeding set of parentheses, as the case may be)~~Company elects a Settlement Method, the Company ~~elects to deliver a notice (~~shall inform Holders so converting through the ~~“Settlement Notice”)~~ Trustee of the ~~relevant~~ Settlement Method ~~in respect of such Conversion Date~~ it has elected (~~or such period, as~~ including the ~~case may be),~~ Specified Dollar Amount if the ~~Company, through the Trustee, shall deliver such Settlement Notice to converting Holders~~ Company elects Combination Settlement) no later than the close of business on the second Trading Day immediately following the ~~relevant~~ related Conversion Date (~~or,~~ or in the case of any ~~conversions~~ conversion occurring on or after ~~June~~ April 1, ~~2018~~2017, no later than ~~the close of business on the Business Day immediately preceding June~~ April 1, ~~2018~~2017). If the Company does not timely elect a Settlement Method ~~prior to the deadline set forth in the immediately preceding sentence~~for a conversion, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement for such conversion and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. ~~Such Settlement Notice shall specify~~ If the ~~relevant Settlement Method and in the case of an election of~~ Company elects Combination Settlement, ~~the relevant Settlement Notice shall indicate~~ but does not timely notify converting Holders of the Specified Dollar ~~Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a~~ Amount, 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 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 Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder ~~in respect of each $1,000 principal amount of Notes being converted~~ a number of shares of Common Stock equal to the product of (1) the aggregate principal amount of Notes to be converted, divided by $1,000, and (2) the applicable Conversion Rate in ~~effect on the Conversion Date~~effect; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 40 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the ~~Converting Holder~~ converting Holder, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 40 consecutive Trading Days during the ~~related~~ relevant Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of ~~delivering~~ any fractional ~~share of Common Stock~~share, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of ~~delivering~~ fractional shares of Common 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~~8.02(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~~8.02(g) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~14.02(h~~8.02(g). The Trustee (~~and,~~ and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 8 on the Conversion Date for such conversion. No ~~Notice of Conversion with respect to any~~ Holder may surrender Notes ~~may be delivered by a Holder thereof~~ for conversion if such Holder has also delivered a Fundamental Change ~~Repurchase~~ Purchase Notice to the Company in respect of such Notes and ~~has~~ not validly withdrawn such Fundamental Change ~~Repurchase~~ Purchase Notice in accordance with Section ~~15.03~~9.02. 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. The Company shall pay or deliver, as the case may be, the ~~consideration due in respect of the Conversion Obligation on~~ Settlement Amount to such Holder no later than the third ~~Business~~ Scheduled Trading Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on no later than the third ~~Business~~ Scheduled Trading Day immediately following the last Trading Day of the relevant Observation Period, in if the ~~case of~~ Company elects any other Settlement ~~Method. If any shares of Common Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver~~ Method (subject 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~~ provisions of ~~shares of Common Stock to which such Holder shall be entitled in satisfaction of the Company’s Conversion Obligation~~Section 8.03(b) and Section 8.07(a)). (d) In case any Note shall be surrendered for partial conversion, in $1,000 principal amount or an integral multiple thereof, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any ~~documentary, stamp or similar issue or~~ transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the ~~issue~~ issuance of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares of Common Stock to be issued in a name other than ~~the~~ such Holder’s name, in which case ~~the~~ such Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing 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 Note Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (hg) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, ~~if any, except as set forth below~~unless such conversion occurs between a Regular Record Date and the Interest Payment Date to which it relates and such Holder was the Holder of record on such Regular Record Date. The Company’s ~~settlement~~ payment or delivery, as the case may be, of the ~~full Conversion Obligation~~ Settlement Amount upon conversion of any Note shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid ~~interest, if any,~~ interest to, but not including, the relevant Conversion Date. As a result, accrued and unpaid ~~interest, if any,~~ interest 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~~ any cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date ~~will~~ 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~~ if such Notes are converted after the close of business on the Regular Record Date immediately preceding the Maturity Date and before close of business on the second Scheduled Trading Day immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change ~~Repurchase~~ Purchase Date that is after a Regular Record Date and on or prior to the Business Day immediately ~~succeeding~~ following the corresponding Interest Payment Date; or (3) to the extent of any Defaulted ~~Amounts~~Interest, if any Defaulted ~~Amounts~~ 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 Fundamental Change Repurchase Date as described in the immediately preceding sentence shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date regardless of whether their Notes have been converted following such Regular Record Date. (ih) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall ~~be treated as a stockholder~~ become the holder of record of such shares as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the 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. (ji) The 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 on the relevant Conversion Date (in if the ~~case of~~ Company elects Physical Settlement) or ~~based on the Daily VWAP on~~ the last Trading Day of the ~~relevant~~ applicable Observation Period (in if the ~~case of~~ Company elects Combination Settlement). For each Note surrendered for conversion, if the Company has elected ~~(or is deemed to have elected)~~ Combination Settlement, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the ~~relevant~~ applicable Observation Period and any fractional shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Sources: First Supplemental Indenture (GT Advanced Technologies 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 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 ~~the Company’s~~ its election, as set forth in this Section 14.02. (i) All conversions of Notes for which the relevant Conversion Date occurs on or after ~~June 1~~March 15, ~~2018~~ 2027, and all conversions of Notes during a Redemption Period of Notes called for redemption (or deemed called for redemption pursuant to Section 14.01(b)(ii)), shall be settled using the same Settlement Method. (ii) Except for any conversions ~~that occur~~ of Notes called for redemption (or deemed called for redemption pursuant to Section 14.01(b)(ii)) for which the relevant Conversion Date occurs during the related Redemption Period and any conversions for which the relevant Conversion Date occurs on or after ~~June 1~~March 15, ~~2018 to the close of business on the Business Day immediately preceding the Maturity Date~~2027, the Company shall use the same Settlement Method for all conversions ~~occurring on~~ with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions ~~that occur on~~ with different Conversion ~~Days~~Dates. (iii) If, in respect of any Conversion Date (or the period described in the third immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the ~~Company, through the Trustee,~~ Company shall deliver such Settlement Notice to converting Holders through the Trustee no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions ~~occurring~~ of Notes called for redemption (or deemed called for redemption pursuant to Section 14.01(b)(ii)) for which the relevant Conversion Date occurs during the related Redemption Period, in such Redemption Notice or in the case of any conversions of Notes for which the relevant Conversion Date occurs on or after ~~June 1~~March 15, ~~2018~~2027, no later than March 15, 2027) (in each case, the ~~close of business on the Business Day immediately preceding June 1, 2018~~“Settlement Method Election Deadline”). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect ~~Cash~~ a Settlement Method with respect to any conversion on such Conversion Date or ~~Physical Settlement~~ during such period, and the Company shall be deemed to have elected ~~Combination~~ the Default Settlement in Method with respect ~~of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal~~ to ~~$1,000~~such conversion. ~~Such~~ Any Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company ~~delivers a Settlement Notice electing~~ timely elects Combination Settlement in (or is deemed to have elected Combination Settlement) with respect ~~of its Conversion Obligation~~ to a conversion but does not ~~indicate~~ 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 Company’s failure to timely elect a Settlement Method or specify the applicable Specified Dollar Amount shall not constitute a Default under this Indenture. The Company may, by notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) prior to March 15, 2027, irrevocably fix the Settlement Method, to any Settlement Method that the Company is then permitted to elect, including Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes ~~in such Settlement Notice,~~ of $1,000 or with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above any specific amount set forth in such election notice. Concurrently with providing notice to all Holders of an election to change the Default Settlement Method or irrevocably fix the Settlement Method, the Company shall promptly either post an announcement on its website or issue a report on Form 8-K (or any successor form) disclosing such Default Settlement Method or irrevocably fixed Settlement Method. If the Company changes the Default Settlement Method or elects to irrevocably fix the Settlement Method, in either case, to Combination Settlement with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above a specified amount, the Company will, after the date of such change or election, as the case may be, inform Holders converting their Notes of such Specified Dollar Amount no later than the relevant Settlement Method Election Deadline, or, if the Company does not timely notify Holders, such Specified Dollar Amount will be the specific amount set forth in the change or election notice or, if no specific amount was set forth in the change or election notice, such Specified Dollar Amount shall be $1,000 per $1,000 principal amount of Notes. A change in the Default Settlement Method or an irrevocable election shall apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such notice; provided, however, that no such change in the Default Settlement Method or irrevocable election shall affect any Settlement Method theretofore elected (or deemed to be ~~$1,000~~elected) with respect to any conversion. 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 the provisions described in Section 10.01(k). However, the Company may nonetheless choose to execute such an amendment at the Company’s 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 Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion ~~Rate in effect on the Conversion Date~~Rate; (B) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 40 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the ~~Converting~~ converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 40 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common 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 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 (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (~~and,~~ and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be ~~delivered~~ surrendered by a Holder thereof if such ~~Holder~~ ▇▇▇▇▇▇ has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 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. ~~The~~ Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the ~~third~~ second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the ~~third~~ 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 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 Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common 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 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. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the ~~Note~~ 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 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) for Notes called (or deemed called pursuant to Section 14.01(b)(ii)) for redemption, if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Scheduled Trading Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately ~~succeeding~~ following the corresponding Interest Payment Date; or (34) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, any Redemption Date described in clause (2) above, or any Fundamental Change Repurchase Date as described in ~~the immediately preceding sentence~~ clause (3) above shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been ~~converted~~ converted, redeemed or repurchased, as applicable, following such Regular Record Date. (i) The Person in whose name the ~~certificate for any~~ shares of Common Stock ~~delivered~~ shall be issuable upon conversion ~~is registered~~ shall ~~be treated as a~~ become the stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the 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. (j) The 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 on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP on the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of 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 (Sarepta Therapeutics, 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 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 ~~the Company’s~~ its election, as set forth in this Section 14.02. (i) All conversions of Notes for which the relevant Conversion Date occurs on or after June 115, ~~2018~~ 2022 shall be settled using the same Settlement Method. (ii) Except for any conversions ~~that occur on or after June 1, 2018 to~~ of Notes described in the ~~close of business on~~ preceding clause (i) and in the ~~Business Day immediately preceding the Maturity Date~~following clause (iii), the Company shall use the same Settlement Method for all conversions ~~occurring on~~ of Notes with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions ~~that occur on~~ of Notes with different Conversion ~~Days~~Dates. (iii) If, in respect of any Conversion Date (or one of the ~~period~~ periods described in the third immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), it will inform Holders so converting, the ~~Company~~Trustee and the Conversion Agent, ~~through~~ of the ~~Trustee, shall deliver such Settlement Notice to converting Holders~~ settlement method it has selected 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 ~~occurring~~ of Notes for which the relevant Conversion Date occurs on or after June 115, ~~2018~~2022, no later than June 15, 2022. However, notwithstanding anything to the ~~close of business~~ contrary above, if the Company calls any Notes for redemption then (x) the Company will specify in the related Redemption Notice the Settlement Method that will apply to all conversions with a Conversion Date that occurs on or after the date we send such Redemption Notice and on or prior to the second Business Day immediately preceding the related Redemption Date and (y) if the related Redemption Date occurs on or after June 115, ~~2018).~~ 2022, then such Settlement Method must be the same Settlement Method that applies to all conversions with a Conversion Date that occurs on or after June 15, 2022. (iv) If the Company does not elect a Settlement Method prior to the deadline set forth in the two immediately preceding ~~sentence~~sentences, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to any conversion on such Conversion Date or during such period, and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. (ivv) 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 Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 25 consecutive Trading Days during the ~~related~~ relevant Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the ~~Converting~~ converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 25 consecutive Trading Days during the ~~related~~ relevant Observation Period. (vvi) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common 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 (iA) 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) and (iiB) in the case of a Physical Note (1) complete, manually sign and deliver an ~~irrevocable~~ irrevocable, completed notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a ~~facsimile~~ facsimile, PDF or other electronic transmission thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer ~~documents~~ documents, (4) if required, pay all transfer and similar taxes as set forth in Section 14.02(d) and Section 14.02(e) and (45) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (~~and,~~ and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be ~~delivered~~ surrendered by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03. If a Holder submits its Notes for required repurchase, the Holder’s right to withdraw the Fundamental Change Repurchase Notice and convert the Notes that are subject to repurchase will terminate at the close of business on the Second 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. Any exercise by a Holder of its conversion rights in respect of a Note shall be irrevocable. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. ~~The~~ Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the third Business Day immediately following the relevant Conversion Date, if the Company elects Physical ~~Settlement~~Settlement (unless such Conversion Date is on or after the Regular Record Date immediately preceding the Maturity Date, in which case the Company shall deliver the consideration due in respect of such Conversion Obligation on the Maturity Date),, 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. If any shares of Common Stock are due to converting Holders, the 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 Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall ~~execute~~ execute, and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so ~~surrendered~~ surrendered, a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common 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 (if other than the Trustee) at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions ~~following~~ after the close of business on the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the second Business Day immediately ~~succeeding~~ following the corresponding Interest Payment Date; or (34) to the extent of any Defaulted Amounts, if any Defaulted Amounts ~~exists~~ exist at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record at the close of business on the Regular Record Date immediately preceding (i) the Maturity Date, (ii) any Redemption Date or described in clause (2) of the immediately preceding sentence and (iii) any Fundamental Change Repurchase Date as described in clause (3) of the immediately preceding sentence shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment ~~Date~~ Date, regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the ~~certificate for any~~ shares of Common Stock ~~delivered~~ shall be issuable upon conversion ~~is registered~~ shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common 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 on for the relevant Conversion Date (or, if such Conversion Date is not a Trading Day, the immediately preceding Trading Date) (in the case of Physical Settlement) or based on the Daily VWAP on for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected ~~(or is deemed to have elected)~~ Combination Settlement, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation ~~Period~~ Period, and any fractional shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Sources: Indenture (Teladoc, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~14.02~~12.02, Section ~~14.03(b~~12.03(c) and Section ~~14.07(a)~~12.05, upon any conversion of any Note, the Company shall ~~pay~~ satisfy its Conversion Obligation by paying or ~~deliver~~delivering, as the case may be, to the converting ~~Holder~~holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Series A Liberty SiriusXM Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Series A Liberty SiriusXM Common Stock in accordance with subsection (ji) of this Section ~~14.02~~ 12.02 (“Physical Settlement”) or a combination of cash and shares of Series A Liberty SiriusXM Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Series A Liberty SiriusXM Common Stock in accordance with subsection (ji) of this Section ~~14.02~~ 12.02 (“Combination Settlement”), at ~~the Company’s~~ its election, as set forth in this Section ~~14.02~~12.02. (i) All conversions of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period shall be settled using the same Settlement Method, and all conversions for which the relevant Conversion Date occurs on or after ~~June 1~~December 15, ~~2018~~ 2027, shall be settled using the same Settlement Method. (ii) Except for any conversions ~~that occur~~ of Called Notes for which the relevant Conversion Date occurs during a Redemption Period and any conversions for which the relevant Conversion Date occurs on or after ~~June 1~~December 15, ~~2018 to the close of business on the Business Day immediately preceding the Maturity Date~~2027, the Company shall use the same Settlement Method for all conversions ~~occurring on~~ with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions ~~that occur on~~ with different Conversion ~~Days~~Dates. (iii) If, in respect of any Conversion Date (or ~~the~~ any period described in the third immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the Trustee, shall deliver such Settlement Notice to converting ~~Holders~~ holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of (A) any conversions ~~occurring~~ of Called Notes for which the relevant Conversion Date occurs during the applicable Redemption Period, in the relevant Redemption Notice, (B) any conversions of Notes for which the relevant Conversion Date occurs on or after ~~June 1~~December 15, ~~2018~~2027, no later than ~~the close~~ December 15, 2027, or (C) any conversions of ~~business on the Business Day immediately preceding June 1, 2018). If~~ Notes for which the Company ~~does not elect~~ has irrevocably elected Physical Settlement pursuant to Section 12.01(b)(iii) in a notice as described in such Section 12.01(b)(iii)) (in each case, the “Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000Election Deadline”). Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company does not elect a Settlement Method prior to the relevant Settlement Method Election Deadline with respect to a conversion, the Company shall no longer have the right to elect a Settlement Method with respect to any conversion on such Conversion Date or during such period, and the Company shall be deemed to have elected the Default Settlement Method with respect to any conversion (and, for the avoidance of doubt, no Default or Event of Default under this Indenture shall be deemed to have occurred due to the Company’s failure to timely elect a Settlement Method) on such Conversion Date or during such period, as the case may be. If, prior to the relevant Settlement Method Election Deadline, the Company delivers a Settlement Notice electing Combination Settlement ~~in respect of its Conversion Obligation~~ (or is deemed to have elected Combination Settlement) but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. For the avoidance of doubt, the Company’s failure to timely elect a Settlement Method or specify the applicable Specified Dollar Amount shall not constitute a Default or Event of Default under this Indenture. By notice to all holders, the Company may, on or prior to December 15, 2027, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through any Settlement Method that the Company is then permitted to elect, including Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 or with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above a specific amount set forth in such election notice. Concurrently with providing notice to all holders of an election to change the Default Settlement Method or irrevocably fix the Settlement Method, the Company shall promptly either post an announcement on its website or issue a report on Form 8-K (or any successor form) disclosing such Default Settlement Method or irrevocably fixed Settlement Method. If the Company changes the Default Settlement Method or irrevocably elects to fix the Settlement Method, in either case, to Combination Settlement with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above a specific amount, the Company will, after the date of such change or election, as the case may be, inform holders converting their Notes through the Trustee in writing of such Specified Dollar Amount no later than the relevant Settlement Method Election Deadline, or, if the Company does not timely notify holders, such Specified Dollar Amount will be the specific amount set forth in the election notice or, if no specific amount was set forth in the election notice, such Specified Dollar Amount will be $1,000 per $1,000 principal amount of Notes. Such change in the Default Settlement Method or irrevocable election shall apply for all conversions of Notes with Conversion Dates occurring subsequent to delivery of such notice; provided, however, that no such change in the Default Settlement Method or irrevocable election will affect any Settlement Method theretofore elected (or deemed to be elected) with respect to any Note. For the avoidance of doubt, such an irrevocable election, if made by the Company, will be effective without the need to amend this Indenture or the Notes, including pursuant to ‎‎Section 9.01(l). However, the Company may nonetheless choose to execute such an amendment at its option. (iv) The cash, shares of Series A Liberty SiriusXM Common Stock or combination of cash and shares of Series A Liberty SiriusXM Common Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting ~~Holder~~ holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Series A Liberty SiriusXM Common Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting ~~Holder~~ holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 40 (or, in the case of a SIRI Redemption, 20) consecutive Trading Days during the related Observation Period; and (C) if the Company elects ~~(or is deemed to have elected)~~ to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the ~~Converting Holder~~ converting holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 40 (or, in the case of a SIRI Redemption, 20) consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Series A Liberty SiriusXM Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) in writing of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Series A Liberty SiriusXM 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~~12.02(d), before any ~~Holder~~ holder of a Note shall be entitled to convert ~~a Note~~ the same as set forth above, such ~~Holder~~ holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time and, if required, pay funds equal to the amount of interest and Additional Interest, if any, payable on the next Interest Payment Date to which such ~~Holder~~ holder is not entitled as set forth in Section ~~14.02(h)~~ 12.02(g), and (ii) in the case of a ~~Physical~~ Note issued in certificated form, (1) ~~complete,~~ complete and manually sign and deliver an irrevocable notice to the Conversion Agent ~~as set forth~~ in the ~~Form~~ form on the reverse of ~~Notice of Conversion~~ such certificated Note (or a facsimile thereof) (Exhibit B hereto) (a “Notice of Conversion”) at the office of the Conversion Agent and shall 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 registeredconverted, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, and (3~~) if required, furnish appropriate endorsements and transfer documents and (4~~) if required, pay funds equal to interest (including any Additional Interest) payable on the next Interest Payment Date to which such ~~Holder~~ holder is not entitled as set forth in Section ~~14.02(h)~~12.02(g) and (4) if required, furnish appropriate endorsements and transfer documents. The Trustee (~~and,~~ and if different, the relevant Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 12 on the ~~Conversion Date for~~ date of such conversion. No Notice of Conversion with respect to any Notes may be ~~delivered~~ surrendered by a ~~Holder~~ holder thereof if such ~~Holder~~ holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and ~~has~~ not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~15.03~~13.02, unless the Company defaults in the payment of the Fundamental Change Repurchase Price. If more than one Note shall be surrendered for conversion at one time by the same ~~Holder~~holder, the Conversion Obligation with respect to such ~~Notes~~ Notes, if any, that shall be payable upon conversion 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~~ holder has complied with the requirements set forth in ~~subsection~~ clause (b) ~~above. The 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. If any shares of Common Stock are due to converting Holders, the 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 Company’s Conversion Obligationthis Section 12. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common 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 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. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date; or (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date or any Fundamental Change Repurchase Date as described in the immediately preceding sentence shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common 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 on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP on the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of 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 (Sirius Xm 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 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 ~~the Company’s~~ its election, as set forth in this Section 14.02. (i) All conversions of Notes for which the relevant Conversion Date occurs on or after June 115, ~~2018~~ 2028, and all conversions of Notes during a Redemption Period of Notes called for redemption (or deemed called for redemption pursuant to Section 14.01(b)(ii)), shall be settled using the same Settlement Method. (ii) Except for any conversions ~~that occur~~ of Notes called for redemption (or deemed called for redemption pursuant to Section 14.01(b)(ii)) for which the relevant Conversion Date occurs during the related Redemption Period and any conversions for which the relevant Conversion Date occurs on or after June 115, ~~2018 to the close of business on the Business Day immediately preceding the Maturity Date~~2028, the Company shall use the same Settlement Method for all conversions ~~occurring on~~ with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions ~~that occur on~~ with different Conversion ~~Days~~Dates. (iii) If, in respect of any Conversion Date (or the period described in the ~~third~~ fourth immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a written notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the ~~Company, through the Trustee,~~ Company shall deliver such Settlement Notice to the Trustee, the Conversion Agent (if other than the Trustee) and converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions ~~occurring~~ of Notes (x) called for redemption (or deemed called for redemption pursuant to Section 14.01(b)(ii)) for which the relevant Conversion Date occurs during the related Redemption Period, in such Redemption Notice, (y) for which the relevant Conversion Date occurs on or after June 115, ~~2018~~2028, no later than June 15, 2028 or (z) for which the ~~close of business on~~ Company has irrevocably elected Physical Settlement pursuant to Section 14.01(b)(iii), in the ~~Business Day immediately preceding June 1~~related Certain Distributions Notification) (in each case, ~~2018~~the “Settlement Method Election Deadline”). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect ~~Cash~~ a Settlement Method with respect to any conversion on such Conversion Date or ~~Physical Settlement~~ during such period, and the Company shall be deemed to have elected ~~Combination~~ the Default Settlement in Method with respect ~~of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal~~ to ~~$1,000~~such conversion. ~~Such~~ Any Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company ~~delivers a Settlement Notice electing~~ timely elects Combination Settlement in (or is deemed to have elected Combination Settlement) with respect ~~of its Conversion Obligation~~ to a conversion but does not ~~indicate~~ timely notify the converting Holder, the Trustee and the Conversion Agent (if other than the Trustee) of the applicable Specified Dollar Amount, then the Specified Dollar Amount for such conversion will be deemed to be $1,000 per $1,000 principal amount of Notes. For the avoidance of doubt, the Company’s failure to timely elect a Settlement Method or specify the applicable Specified Dollar Amount shall not constitute a default under this Indenture. The Company may, by notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) prior to June 15, 2028, 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 ~~in such Settlement Notice,~~ of $1,000 or with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above any specific amount set forth in such election notice. Concurrently with providing notice to all Holders of an election to change the Default Settlement Method or irrevocably fix the Settlement Method, the Company shall promptly either post an announcement on its website or issue a report on Form 8-K (or any successor form) disclosing such Default Settlement Method or irrevocably fixed Settlement Method. If the Company changes the Default Settlement Method or elects to irrevocably fix the Settlement Method, in either case, to Combination Settlement with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above a specified amount, the Company will, after the date of such change or election, as the case may be, inform Holders converting their Notes of such Specified Dollar Amount no later than the relevant Settlement Method Election Deadline, or, if the Company does not timely notify Holders, such Specified Dollar Amount will be the specific amount set forth in the change or election notice or, if no specific amount was set forth in the change or election notice, such Specified Dollar Amount shall be $1,000 per $1,000 principal amount of Notes. A change in the Default Settlement Method or an irrevocable election shall apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such notice; provided, however, that no such change in the Default Settlement Method or irrevocable election shall affect any Settlement Method theretofore elected (or deemed to be ~~$1,000~~elected) with respect to any conversion. 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 the provisions described in Section 10.01(l). However, the Company may nonetheless choose to execute such an amendment at the Company’s 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 Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion ~~Date~~Date (plus cash in lieu of any fractional share of Common Stock issuable upon conversion); (B) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 20 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, ~~to the Converting Holder~~ in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 20 consecutive Trading Days during the related Observation ~~Period~~Period (plus cash in lieu of any fractional share of Common Stock issuable upon conversion). (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) in writing of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common 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~~ the Special Interest, if any, payable on the next Special Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and, if required, pay all transfer or similar taxes, if any, pursuant to Section 14.02(e) and (ii) in the case of a Physical Note (1) complete, manually or electronically sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer ~~documents and~~ documents, (4) if required, pay funds equal to ~~interest~~ the Special Interest, if any, payable on the next Special Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (5) if required, pay all transfer or similar taxes, if any, pursuant to Section 14.02(e). The Trustee (~~and,~~ and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be ~~delivered~~ surrendered by a Holder thereof if such ~~Holder~~ ▇▇▇▇▇▇ has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 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. ~~The~~ Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the ~~third~~ second Business Day immediately following the relevant Conversion Date, if the Company elects to satisfy its Conversion Obligation through Physical ~~Settlement~~Settlement (provided that, with respect to any Conversion Date following the Special Interest Record Date immediately preceding the Maturity Date where Physical Settlement applies to the related conversion, the Company will settle any such conversion on the Maturity Date (or, if the Maturity Date is not a Business Day, the next Business Day), and, for purposes of calculating the consideration due upon such conversion, the Conversion Date thereof will be deemed to occur on the second Scheduled Trading Day preceding the Maturity Date), or on the ~~third~~ second Business Day immediately following the last Trading Day of the ~~relevant~~ Observation Period, in if the ~~case of~~ Company elects to satisfy its Conversion Obligation through any other Settlement Method. If any shares of Common Stock are due to a converting ~~Holders~~Holder, the Company shall issue or cause to be issued, and deliver (if applicable) through its common stock transfer agent to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, ~~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 Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common 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 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. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid ~~interest~~Special Interest, if any, to, but 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, accrued and unpaid ~~interest~~ Special Interest, if any, will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a ~~Regular~~ Special Interest Record Date but prior to the open of business on the immediately following Special Interest Payment Date, Holders of such Notes as of the close of business on such ~~Regular~~ Special Interest Record Date will receive the full amount of ~~interest~~ Special Interest, if any, payable on such Notes (to, but not including, such Special Interest Payment Date) on ~~the corresponding~~ such Special Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of business on any ~~Regular~~ Special Interest Record Date to the open of business on the immediately following Special Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date; or (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date or any Fundamental Change Repurchase Date as described in the immediately preceding sentence shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common 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 on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP on the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of 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.a

Appears in 1 contract

Sources: Indenture (Alnylam Pharmaceuticals, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~14.02~~11.02, Section ~~14.03(b~~11.03(b) and Section ~~14.07(a~~11.07(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), 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~~ 11.02 (“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~~ 11.02 (“Combination Settlement”), at ~~the Company’s~~ its election, as set forth in this Section ~~14.02~~11.02. (i) All conversions for which the relevant Conversion Date occurs on or after June 1, ~~2018~~ 2024 and all conversions for which the relevant Conversion Date occurs after the issuance of a Notice of Redemption and prior to the related Redemption Date shall be settled using the same Settlement Method. (ii) Except for any conversions ~~that occur~~ for which the relevant Conversion Date occurs after the Company’s issuance of a Notice of Redemption with respect to the Notes, but prior to the related Redemption Date, and any conversions for which the relevant Conversion Date occurs on or after June 1, ~~2018 to the close of business on the Business Day immediately preceding the Maturity Date~~2024, the Company shall use the same Settlement Method for all conversions occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions that occur on different ~~Conversion~~ Trading Days. (iii) If, in respect of any Conversion Date (or in respect of one of the ~~period~~ periods described in the ~~third~~ fourth immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the ~~Company, through the Trustee,~~ Company shall deliver such Settlement Notice to converting ~~Holders~~ Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Trading Day immediately following the ~~relevant~~ related Conversion Date (or, in the case of ~~any~~ conversions occurring (x) after the date of issuance of a Notice of Redemption and prior to the related Redemption Date, in such Notice of Redemption or (y) on or after June 1, ~~2018~~2024, no later than the close of business on the ~~Business~~ Scheduled Trading Day immediately preceding June 1, ~~2018~~2024). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. (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 Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 40 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, ~~to the Converting Holder~~ in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 40 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common 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~~11.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~14.02(h~~11.02(h) and, if required, pay all transfer and similar taxes, if any as provided in Sections 11.02(d) or (e), and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~14.02(h~~11.02(h). The Trustee (and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 XI on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be ~~delivered~~ surrendered by a Holder thereof if such ~~Holder~~ ▇▇▇▇▇▇ has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and ~~has~~ not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~15.03~~12.02. 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. ~~The~~ Except as set forth in Section 11.03(b) and Section 11.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the ~~third~~ second Business Day immediately following the relevant Conversion Date, if the Company elects Physical ~~Settlement~~Settlement (provided that, with respect to any Conversion Date occurring on or after June 1, 2024, settlement will occur on the Maturity Date) or on the ~~third~~ 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 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 Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder ~~but, if required by the Company or Trustee,~~ but with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common 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~~11.04, 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 14XI. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Notes Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions of Notes following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately ~~succeeding~~ following the corresponding Interest Payment Date; or (34) 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 Fundamental Change Repurchase Date ~~as described~~ or Redemption Date, in ~~the immediately preceding sentence~~ each case, shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash, regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common 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 on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP on the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of 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.

Appears in 1 contract

Sources: First Supplemental Indenture (INFINERA Corp)

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 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 25 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(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 the Company’s election, as set forth in this Section ‎Section 14.02. (i) All conversions of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period, and all conversions for which the relevant Conversion Date occurs on or after ~~June~~ February 1, ~~2018~~ 2028 shall be settled using the same ~~Settlement Method~~forms and amounts of consideration. (ii) Except for any conversions ~~that occur~~ of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period, and any conversions for which the relevant Conversion Date occurs on or after ~~June~~ February 1, ~~2018 to the close of business on the Business Day immediately preceding the Maturity Date~~2028, the Company shall use the same ~~Settlement Method~~ forms and amounts of consideration for all conversions ~~occurring on~~ with the same Conversion Date, but the Company shall not have any obligation to use the same ~~Settlement Method~~ forms and amounts of consideration with respect to conversions ~~that occur on~~ with different Conversion ~~Days~~Dates. (iii) IfUnless the Company has made an Irrevocable Settlement Election, if, in respect of any Conversion Date (or any conversions of Called Notes for which the ~~period described in~~ relevant Conversion Date occurs during the ~~third immediately succeeding set of parentheses~~related Redemption Period or any conversions for which the relevant Conversion Date occurs on or after February 1, ~~as the case may be~~2028), the Company elects to ~~deliver~~ settle all or a ~~notice (the “Settlement Notice”)~~ portion of its Conversion Obligation in excess of the ~~relevant Settlement Method~~ principal portion of the Notes being converted in cash in respect of such Conversion Date (or such period, as the case may be), the ~~Company, through the Trustee,~~ Company shall ~~deliver such Settlement Notice to~~ inform converting Holders through (and upon a written request to) the Trustee of such election (the “Settlement Notice”) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of (A) any conversions ~~occurring~~ of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period, in the related Notice of Redemption or (B) any conversions of Notes for which the relevant Conversion Date occurs on or after ~~June~~ February 1, ~~2018~~2028, no later than ~~the close of business on the Business Day immediately preceding June~~ February 1, ~~2018~~2028) and the Company shall indicate in such Settlement Notice the percentage of the Conversion Obligation in excess of the principal portion of the Notes being converted that shall be paid in cash (the “Cash Percentage”). If the Company does not elect a ~~Settlement Method~~ Cash Percentage prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect a Cash ~~Settlement~~ Percentage with respect to any conversion on such Conversion Date or ~~Physical Settlement~~ during such period, and the Company shall be deemed to have elected ~~Combination~~ a Cash Percentage of 0% with respect to such conversion unless prior to such time the Company has made an Irrevocable Settlement ~~in respect~~ Election. For the avoidance of doubt, the Company’s failure to make a timely election of the Cash Percentage, as described above, shall not constitute a Default under this Indenture. Prior to February 1, 2028, the Company may, at its election, by notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee), irrevocably elect to satisfy its Conversion ~~Obligation, and the Specified Dollar Amount per $1,000 principal amount~~ Obligation with respect to all future conversions of Notes with a Conversion Date subsequent to the date of delivery of such notice with a specified Cash Percentage set forth in such notice (including, without limitation, a Cash Percentage of 0%) (such an election, an “Irrevocable Settlement Election”); provided that no such Irrevocable Settlement Election shall affect any Cash Percentage theretofore elected (or deemed to be ~~equal~~ elected) with respect 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 Notesany Note. If the Company ~~delivers a~~ makes an Irrevocable Settlement ~~Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount~~ Election, then, concurrently with providing notice to Holders of Notes in of such Irrevocable Settlement ~~Notice~~Election, the ~~Specified Dollar Amount per $1,000 principal amount of Notes~~ Company shall ~~be deemed to be $1,000~~either post the fixed Cash Percentage 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 “~~Daily Settlement ~~Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement~~Amounts, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the Converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 consecutive Trading Days during the related Observation Period. (v) The Daily Net Settlement Amounts (if applicable) and the Daily Conversion Values ~~(if applicable)~~ shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts, the Daily Net Settlement Amounts or (if applicable) and the Daily Conversion ~~Values, as the case may be,~~ Values and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the 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 (if applicable) and the Daily Conversion ~~Values, as the case may be,~~ Values and the amount of cash payable in lieu of delivering any fractional 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 (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a ~~facsimile~~ facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in ~~Section~~ ‎Section 14.02(h). The Trustee (~~and,~~ and if different, the Conversion Agent) shall notify the 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 ~~delivered~~ surrendered for conversion by a Holder thereof if such ~~Holder~~ H▇▇▇▇▇ has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with ~~Section~~ ‎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. The 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. If any shares of Common Stock are due to a converting ~~Holders~~Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, ~~certificates or a book-entry transfer through the Depositary for~~ the full number of shares of Common Stock to which such Holder shall be ~~entitled~~ entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax or other similar governmental charge due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common 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 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. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of ~~Notes into a combination of cash and shares of Common 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 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 Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately ~~succeeding~~ following the corresponding Interest Payment Date; or (34) 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 Fundamental Change Repurchase Date as described in the immediately preceding sentence~~ shall receive the full interest payment due on the Maturity Date ~~or other applicable Interest Payment Date~~ 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~~ shall be issuable upon conversion ~~is registered~~ shall be treated as a ~~stockholder~~ shareholder of record as of the close of business on the ~~relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the~~ last Trading Day of the relevant Observation ~~Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be~~Period. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common 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 ~~on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP on~~ for the last Trading Day of the relevant Observation ~~Period (in the case of Combination Settlement)~~Period. For each Note surrendered for conversion, ~~if the Company has elected (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 (CMS Energy Corp)

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 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 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 the Company’s election, as set forth in this Section ‎Section 14.02. (i) All conversions of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period, and all conversions for which the relevant Conversion Date occurs on or after ~~June~~ August 1, ~~2018~~ 2028, shall be settled using the same ~~Settlement Method~~forms and amounts of consideration. (ii) Except for any conversions ~~that occur~~ of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period, and any conversions for which the relevant Conversion Date occurs on or after ~~June~~ August 1, ~~2018 to the close of business on the Business Day immediately preceding the Maturity Date~~2028, the Company shall use the same ~~Settlement Method~~ forms and amounts of consideration for all conversions ~~occurring on~~ with the same Conversion Date, but the Company shall not have any obligation to use the same ~~Settlement Method~~ forms and amounts of consideration with respect to conversions ~~that occur on~~ with different Conversion ~~Days~~Dates. (iii) If, in respect of any Conversion Date (or any conversions of Called Notes for which the ~~period described in~~ relevant Conversion Date occurs during the ~~third immediately succeeding set of parentheses~~related Redemption Period or any conversions for which the relevant Conversion Date occurs on or after August 1, ~~as the case may be~~2028), the Company elects to ~~deliver~~ settle all or a ~~notice (the “Settlement Notice”)~~ portion of its Conversion Obligation in excess of the ~~relevant Settlement Method~~ principal portion of the Notes being converted in cash in respect of such Conversion Date (or such period, as the case may be), the ~~Company~~Company shall inform converting Holders, ~~through~~ the Trustee and the Conversion Agent (if other than the Trustee~~, shall deliver~~ ) of such election (the “Settlement ~~Notice to converting Holders~~ Notice”) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of (A) any conversions ~~occurring~~ of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period, in the related Notice of Redemption or (B) any conversions of Notes for which the relevant Conversion Date occurs on or after ~~June~~ August 1, ~~2018~~2028, no later than ~~the close of business on the Business Day immediately preceding June~~ August 1, ~~2018~~2028) and the Company shall indicate in such Settlement Notice the percentage of the Conversion Obligation in excess of the principal portion of the Notes being converted that shall be paid in cash (the “Cash Percentage”). If the Company does not elect a ~~Settlement Method~~ Cash Percentage prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect a Cash ~~Settlement~~ Percentage with respect to any conversion on such Conversion Date or ~~Physical Settlement~~ during such period, and the 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 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~~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 Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement~~Amounts, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the Converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 consecutive Trading Days during the related Observation Period. (v) The Daily Net Settlement Amounts (if applicable) and the Daily Conversion Values ~~(if applicable)~~ shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts, the Daily Net Settlement Amounts or (if applicable) and the Daily Conversion ~~Values, as the case may be,~~ Values and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts, the Daily Net Settlement Amounts or (if applicable) and the Daily Conversion ~~Values, as the case may be,~~ Values and the amount of cash payable in lieu of delivering any fractional 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 (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a ~~facsimile~~ facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in ~~Section~~ ‎Section 14.02(h). The Trustee (~~and,~~ and if different, the Conversion Agent) shall notify the 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 ~~delivered~~ surrendered for conversion by a Holder thereof if such ~~Holder~~ ▇▇▇▇▇▇ has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with ~~Section~~ ‎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. The 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. If any shares of Common Stock are due to a converting ~~Holders~~Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, ~~certificates or a book-entry transfer through the Depositary for~~ the full number of shares of Common Stock to which such Holder shall be ~~entitled~~ entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common 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 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. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of ~~Notes into a combination of cash and shares of Common 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 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 Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately ~~succeeding~~ following the corresponding Interest Payment Date; or (34) 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 (i) the Maturity Date, (ii) any Redemption Date or described in clause (2) of the immediately preceding sentence and (iii) any Fundamental Change Repurchase Date as described in clause (3) of the immediately preceding ~~sentence~~ sentence, as applicable, shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name ~~the certificate for~~ any shares of Common Stock ~~delivered~~ shall be issuable upon conversion ~~is registered~~ shall be treated as a stockholder of record as of the close of business on the ~~relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the~~ last Trading Day of the relevant Observation ~~Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be~~Period. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common 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 ~~on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP on~~ for the last Trading Day of the relevant Observation ~~Period (in the case of Combination Settlement)~~Period. For each Note surrendered for conversion, ~~if the Company has elected (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 (Semtech 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 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 (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 (ji) of this Section 14.02 (“Combination Settlement”), at ~~the Company’s~~ its election, as set forth in this Section 14.02. (i) All conversions ~~for which the relevant Conversion Date occurs~~ occurring on or after June 115, ~~2018~~ 2025 shall be settled using the same Settlement Method. (ii) ~~Except for any conversions that occur on or after June 1, 2018 to the close of business on the Business Day immediately preceding the Maturity Date, the~~ The Company shall use the same Settlement Method for all conversions occurring on the same Conversion Date, ~~but~~ but, except for any conversions that occur during the period from, and including, June 15, 2025 to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, the Company shall not have any obligation to use the same Settlement Method with respect to conversions that occur on different Conversion ~~Days~~Dates. (iii) If, in respect of any Conversion Date (or the period described in the ~~third~~ fourth immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the ~~Company, through the Trustee,~~ Company shall deliver such Settlement Notice to converting Holders (with a copy to the Trustee and Conversion Agent) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions (x) occurring during the period from, and including, June 15, 2025 to the close of business on ~~or after June 1, 2018~~the second Scheduled Trading Day immediately preceding the Maturity Date, no later than the close of business on ~~the~~ Business Day immediately preceding June 115, ~~2018~~2025 or (y) for which the Company has irrevocably elected a Settlement Method or a Specified Dollar Amount pursuant to Section 14.02(a)(vi), as described in Section 14.02(a)(vi)). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. (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 Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 40 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, ~~to the Converting Holder~~ in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 40 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (bvi) 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 (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable By written notice to the ~~Conversion Agent as set forth in~~ Holders, the ~~Form of Notice of Conversion (or a facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent~~ 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 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). The Trustee (and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be delivered by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holdermay, 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. The Company shall pay~~ June 15, 2025, at its option, irrevocably elect a Settlement Method 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 Settlementa Specified Dollar Amount, or ~~on the third Business Day immediately following the last Trading Day of the relevant Observation Period, in the case of any other~~ eliminate its right to elect a Settlement Method. ~~If any shares of Common Stock are due~~ The irrevocable election will apply to ~~converting Holders, the Company shall issue or cause~~ all conversions on Conversion Dates occurring subsequent 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 Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common 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 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. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common 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 delivery of such ~~Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion~~notice. 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 Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date; or (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for For the avoidance of doubt, ~~all Holders of record on~~ such an irrevocable election, if made, will be effective without the Regular Record Date immediately preceding the Maturity Date or any Fundamental Change Repurchase Date as described in the immediately preceding sentence shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects need to ~~satisfy the related Conversion Obligation by Physical Settlement)~~ amend this Indenture or the ~~last Trading Day of the relevant Observation Period (if the 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~~including pursuant to Section 10.01(i). (j) The 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 on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP on the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of 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 (Solaredge Technologies, 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 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 ~~the Company’s~~ its election, as set forth in this Section 14.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~June 1~~February 15, ~~2018~~ 2025 or during a Redemption Period shall be settled using the same Settlement Method. (ii) Except for any conversions ~~that occur~~ for which the relevant Conversion Date occurs during a Redemption Period and any conversions for which the relevant Conversion Date occurs on or after ~~June 1~~February 15, ~~2018 to the close of business on the Business Day immediately preceding the Maturity Date~~2025, the Company shall use the same Settlement Method for all conversions ~~occurring on~~ with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions ~~that occur on~~ with different Conversion ~~Days~~Dates. (iii) If, in respect of any Conversion Date (or the period described in the third immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the ~~Company, through the Trustee,~~ Company shall deliver such Settlement Notice to the Trustee, the Conversion Agent, and converting Holders no later than the close of business on the first Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions ~~occurring~~ for which the relevant Conversion Date occurs (i) during a Redemption Period, in the related Redemption Notice or (ii) on or after ~~June 1~~February 15, ~~2018~~2025, no later than ~~the close of business on the Business Day immediately preceding June 1~~February 15, ~~2018~~2025). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement for such conversion or during such period and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes to be converted shall be deemed to be $1,000. Notwithstanding anything to the contrary in the foregoing, the Company shall be permitted to irrevocably elect Physical Settlement in any Certain Distributions Notification and any such election would be applicable to conversions with Conversion Dates that occur after delivery to the Holders of the Certain Distributions Notification until the Certain Distributions Conversion Period End Date. By notice to Holders, the Trustee and the Conversion Agent, the Company may, prior to February 15, 2025, at its option, irrevocably elect to satisfy its Conversion Obligation through Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 for all Conversion Dates occurring subsequent to the date of delivery of such notice; provided that any such election that is made during a Redemption Period will not be applicable to conversions with Conversion Dates that occur during such Redemption Period. (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 Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion ~~Date~~Date (plus cash in lieu of any fractional share of Common Stock issuable upon conversion); (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 40 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, ~~to the Converting Holder~~ in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 40 consecutive Trading Days during the related Observation ~~Period~~Period (plus cash in lieu of any fractional share of Common Stock issuable upon conversion). (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common 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, if required, pay all transfer or similar taxes, if any, pursuant to Section 14.02(e) and ~~(ii)~~ in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a ~~facsimile~~ facsimile, PDF or other electronic transmission thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer ~~documents and~~ documents, (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (5) if required, pay all transfer or similar taxes, if any, pursuant to Section 14.02(e). The Trustee (~~and,~~ and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be ~~delivered~~ surrendered by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 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. ~~The~~ Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the ~~third~~ second Business Day immediately following the relevant Conversion Date, if the Company elects to satisfy its Conversion Obligation through Physical ~~Settlement~~Settlement (provided that, with respect to any Conversion Date following the Regular Record Date immediately preceding the Maturity Date where Physical Settlement applies to the related Conversion, the Company will settle any such Conversion on the Maturity Date), or on the ~~third~~ second Business Day immediately following the last Trading Day of the ~~relevant~~ Observation Period, in if the ~~case of~~ Company elects to satisfy its Conversion Obligation through any other Settlement Method. If any shares of Common Stock are due to a converting ~~Holders~~Holder, the 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 Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common 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 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. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but ~~not including~~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 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 Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately ~~succeeding~~ following the corresponding Interest Payment Date; (3) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date or (34) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, any Redemption Date or and any Fundamental Change Repurchase Date as described in ~~the immediately preceding sentence~~ clause (2) above shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been ~~converted~~ converted, redeemed and/or repurchased, as applicable, following such Regular Record Date. (i) The Person in whose name the ~~certificate for any~~ shares of Common Stock ~~delivered~~ shall be issuable upon conversion ~~is registered~~ shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common 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 on for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP on for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be 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 (Cloudflare, 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 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 ~~the Company’s~~ its election, as set forth in this Section 14.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~June 1~~September 15, ~~2018~~ 2026 or during a Redemption Period shall be settled using the same Settlement Method. (ii) Except for any conversions ~~that occur~~ for which the relevant Conversion Date occurs during a Redemption Period and any conversions for which the relevant Conversion Date occurs on or after ~~June 1~~September 15, ~~2018 to the close of business on the Business Day immediately preceding the Maturity Date~~2026, the Company shall use the same Settlement Method for all conversions ~~occurring on~~ with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions ~~that occur on~~ with different Conversion ~~Days~~Dates. (iii) If, in respect of any Conversion Date (or the period described in the third immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a written notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the ~~Company, through the Trustee,~~ Company shall deliver such Settlement Notice to the Trustee, the Conversion Agent and converting Holders no later than the close of business on the second Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions ~~occurring~~ for which the relevant Conversion Date occurs (i) during a Redemption Period, in the related Redemption Notice or (ii) on or after ~~June 1~~September 15, ~~2018~~2026, no later than ~~the close of business on the Business Day immediately preceding June 1~~September 15, ~~2018~~2026). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement for such conversion or during such period and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes to be converted shall be deemed to be $1,000. Notwithstanding anything to the contrary in the foregoing, the Company shall be permitted to irrevocably elect Physical Settlement in any Certain Distributions Notification and any such election would be applicable to conversions with Conversion Dates that occur after delivery to the Holders of the Certain Distributions Notification until the Certain Distributions Conversion Period End Date. By notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 15, 2026, at its option, irrevocably elect to satisfy its Conversion Obligation through Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 for all Conversion Dates occurring subsequent to the date of delivery of such notice; provided that any such election that is made during a Redemption Period will not be applicable to conversions with Conversion Dates that occur during such Redemption Period. (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 Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion ~~Date~~Date (plus cash in lieu of any fractional share of Common Stock issuable upon conversion); (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 40 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, ~~to the Converting Holder~~ in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 40 consecutive Trading Days during the related Observation ~~Period~~Period (plus cash in lieu of any fractional share of Common Stock issuable upon conversion). (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common 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, if required, pay all transfer or similar taxes, if any, pursuant to Section 14.02(e) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a ~~facsimile~~ facsimile, PDF or other electronic transmission thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer ~~documents and~~ documents, (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (5) if required, pay all transfer or similar taxes, if any, pursuant to Section 14.02(e). The Trustee (~~and,~~ and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be ~~delivered~~ surrendered by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 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. ~~The~~ Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the ~~third~~ second Business Day immediately following the relevant Conversion Date, if the Company elects to satisfy its Conversion Obligation through Physical Settlement, or on the ~~third~~ second Business Day immediately following the last Trading Day of the ~~relevant~~ Observation Period, in if the ~~case of~~ Company elects to satisfy its Conversion Obligation through any other Settlement Method. If any shares of Common Stock are due to a converting ~~Holders~~Holder, the 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 Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common 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 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. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but ~~not including~~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 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 Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately ~~succeeding~~ following the corresponding Interest Payment Date; (3) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date or (34) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, any Redemption Date or and any Fundamental Change Repurchase Date as described in ~~the immediately preceding sentence~~ clause (2) above shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been ~~converted~~ converted, redeemed and/or repurchased, as applicable, following such Regular Record Date. (i) The Person in whose name the ~~certificate for any~~ shares of Common Stock ~~delivered~~ shall be issuable upon conversion ~~is registered~~ shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common 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 on for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP on for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be 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 (Impinj Inc)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b), Section 14.07(a) and Section ~~14.07(a)~~14.12, upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common 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 ~~the Company’s~~ its election, as set forth in this Section 14.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~June~~ November 1, ~~2018~~ 2023, and all conversions for which the relevant Conversion Date occurs on or after the Company’s issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date (a “Redemption Period”), shall be settled using the same Settlement Method. (ii) Except for any conversions ~~that occur~~ for which the relevant Conversion Date occurs on or after ~~June~~ November 1, ~~2018 to~~ 2023, and any conversions for which the ~~close of business on the Business Day immediately preceding the Maturity Date~~relevant Conversion Date occurs during a Redemption Period, the Company shall use the same Settlement Method for all conversions ~~occurring on~~ with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions ~~that occur on~~ with different Conversion ~~Days~~Dates. (iii) If, in respect of any Conversion Date (or one of the ~~period~~ periods described in the third immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the ~~Company, through the Trustee,~~ Company shall deliver such Settlement Notice in writing to converting ~~Holders~~ Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Scheduled Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions ~~occurring~~ for which the relevant Conversion Date occurs (x) during a Redemption Period, in the related Redemption Notice or (y) on or after ~~June~~ November 1, ~~2018~~2023, no later than ~~the close of business on the Business Day immediately preceding June~~ November 1, ~~2018~~2023). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement for such conversion or during such period and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company 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. (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 Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, subject to the Ownership Limitation, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date, together with the amount of cash payable in lieu of delivering any fractional share of Common Stock, and an Interest Make-Whole Payment, if applicable; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, subject to the Ownership Limitation, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 40 consecutive Trading Days during the related Observation Period, together with the amount of cash payable in lieu of delivering any fractional share of Common Stock, and an Interest Make-Whole Payment, if applicable; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, subject to the Ownership Limitation, the Company shall pay or deliver, as the case may be, ~~to the Converting Holder~~ in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 40 consecutive Trading Days during the related Observation Period, together with the amount of cash payable in lieu of delivering any fractional share of Common Stock, and an Interest Make-Whole Payment, if applicable. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common 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 (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 or other electronic transmission thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (~~and,~~ and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be ~~delivered~~ surrendered by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 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. ~~The~~ Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the ~~third~~ second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the ~~third~~ 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 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 Company’s Conversion Obligation. (d) In case any Physical Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Physical Note so surrendered a new Physical Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Physical Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Physical Notes issued upon such conversion being different from the name of the Holder of the old Physical Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common 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 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 under Section 14.01(c). The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common 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 Interest Payment Date corresponding to such Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately following the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the third Business Day immediately following such Interest Payment Date); (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately ~~succeeding~~ following the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the second Business Day immediately following such Interest Payment Date); (4) for Notes in respect of which an Interest Make-Whole Payment is payable upon conversion; or (35) 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 after the close of business on the Regular Record Date immediately preceding the Maturity Date, a Redemption Date or ~~any~~ Fundamental Change Repurchase Date as described in ~~the immediately preceding sentence~~ clauses (2) and (3) of this Section 14.02(h), and any Holders of record entitled to receive an Interest Make-Whole Payment upon conversion described in clause (4) of this Section 14.02(h) shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the ~~certificate for any~~ shares of Common Stock ~~delivered~~ shall be issuable upon conversion ~~is registered~~ shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common 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 on for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP on for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected ~~(or is deemed to have elected)~~ Combination Settlement, the full number of shares that shall be 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 (RumbleON, 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 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 ~~the Company’s~~ its election, as set forth in this Section ~~14.02~~13.02. (i) All conversions ~~for which the relevant Conversion Date occurs~~ occurring on or after June 115, ~~2018~~ 2019 shall be settled using the same Settlement Method. (ii) ~~Except for any conversions that occur on or after~~ Prior to June 115, ~~2018 to the close of business on the Business Day immediately preceding the Maturity Date~~2019, the Company shall use the same Settlement Method for all conversions occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions that occur on different Conversion ~~Days~~Dates. (iii) If, in respect of any Conversion Date (or any conversions of Notes occurring during the period ~~described in~~ beginning on, and including, June 15, 2019 and ending on, and including, the ~~third~~ Scheduled Trading Day immediately ~~succeeding set of parentheses~~preceding the Maturity Date, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions occurring on or after June 115, ~~2018~~2019, no later than ~~the close of business on the Business Day immediately preceding~~ June 115, ~~2018~~2019). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar ~~Amount per $1,000 principal amount of Notes~~Amount. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount ~~per $1,000 principal amount of Notes~~ in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. (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 Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted ~~cash in~~ an amount in cash equal to the sum of the Daily Conversion Values for each of the 50 40 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, ~~to the Converting Holder~~ in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 40 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of ~~delivering~~ any fractional ~~share of Common Stock~~share, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of ~~delivering~~ fractional shares of Common 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 (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date ~~to which such Holder is not entitled~~ as set forth in Section ~~14.02(h~~13.02(h). The Trustee (and, if different, the Conversion Agent) shall notify the 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 ~~delivered~~ surrendered by a Holder thereof if such ~~Holder~~ ▇▇▇▇▇▇ has also delivered a Fundamental Change Repurchase Notice to the ~~Company~~ Paying Agent 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. ~~The~~ Except as provided in Section 13.03(b) and in Section 13.07, the 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. If any shares of Common Stock are due to converting Holders, the 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 portion of the Company’s Conversion ~~Obligation~~Obligation that consists of shares of Common Stock, and, on or prior to such issuance, the Company shall give the Conversion Agent notice of the number of shares of Common Stock being so issued and the method by which the issuance shall take place. Any required funds due to a converting Holder in connection with a Cash Settlement or Combination Settlement shall be delivered to the Paying Agent and such Holder, or such Holder’s nominee or nominees, in accordance with the procedures set forth in Section 14.03. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment by the converting Holder of a sum sufficient to cover any ~~documentary, stamp or similar issue or~~ transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common 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 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. The Company’s settlement of the ~~full~~ Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the ~~relevant~~ Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the ~~relevant~~ Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately ~~succeeding~~ following the corresponding Interest Payment Date; or (3) 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 Fundamental Change Repurchase Date as described in the immediately preceding sentence shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be, in each case solely for the purpose of receiving or participating in any dividend, distribution, issuance, share split or combination, tender or exchange offer or any other event that would lead to a Conversion Rate adjustment as described in Section 13.04. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common 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 on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP on the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected ~~(or is deemed to have elected)~~ Combination Settlement, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the ~~relevant~~ applicable Observation Period and any fractional shares remaining after such computation shall be paid in cash. (k) Notwithstanding anything to the contrary herein, no Holder shall be entitled to receive shares of Common Stock upon conversion to the extent (but only to the extent) that such receipt would cause such converting Holder to become, directly or indirectly, a “beneficial owner” (within the meaning of Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) of more than 5.0% of the shares of Common Stock outstanding at such time (the “Limitation”). Any purported delivery of shares of Common Stock upon conversion of Notes shall be void and have no effect to the extent (but only to the extent) that such delivery would result in the converting Holder becoming the beneficial owner of more than the Limitation. If any delivery of shares of Common Stock owed to a Holder upon conversion of Notes is not made, in whole or in part, as a result of the Limitation, the Company’s obligation to make such delivery shall not be extinguished and the Company shall deliver such shares as promptly as practicable after any such converting Holder gives notice to the Company that such delivery would not result in it being the beneficial owner of more than 5.0% of the shares of Common Stock outstanding at such time. The Limitation shall no longer apply following the effective date of any Fundamental Change.

Appears in 1 contract

Sources: Indenture (TPG Specialty Lending, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) ~~Subject~~ If the Company has not received the requisite approval from its shareholders in accordance with Section 312.03 of The New York Stock Exchange Listed Company Manual prior to February 1, 2037 (“Shareholder Approval”) to issue 20% or more of its Common Stock upon conversion of the Notes prior to the relevant Conversion Date (or, if earlier, (x) the Uniform Settlement Method Election Date in respect of all conversions for which clause (b) of the definition of Conversion Period applies, (y) the date on which the Company issues a Redemption Notice in respect of all conversions for which clause (c) of the definition of Conversion Period applies or (z) the Final Settlement Method Election Date in respect of all conversions for which clause (d) of the definition of Conversion Period applies) (such Conversion Date or other applicable earlier date in respect of such conversion, the “Flexible Settlement Deadline”), and subject to this Section 14.02, Section 14.03(b), Section 14.07(a) and Section ~~14.07(a~~14.12, upon conversion of any Note, the Company shall pay to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, solely an amount of cash as if the Company had elected Cash Settlement as set forth in this Section 14.02. If the Company has received Shareholder Approval prior to the relevant Flexible Settlement Deadline in respect of any conversions, and subject to this Section 14.02, Section 14.03(b), Section 14.07(a) and Section 14.12, upon any such conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common 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, if any, 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 ~~the Company’s~~ its election, as set forth in this Section 14.02. If the Company receives Shareholder Approval on any day, it shall so notify the Holders, the Trustee and the Conversion Agent prior to the close of business on the next succeeding Business Day. (i) All conversions for which the relevant Conversion Date occurs on during the Uniform Conversion Period, the Maturity Conversion Period or ~~after June 1, 2018~~ a Redemption Period shall be settled using the same Settlement Method. (ii) ~~Except~~ For all conversions for ~~any conversions that occur on or after June 1, 2018~~ which the Conversion Date occurs prior to the ~~close of business on the Business Day immediately preceding the Maturity~~ Final Settlement Method Election Date, the Company shall use the same Settlement Method for all conversions ~~occurring on~~ with the same Conversion Date. Except for any conversions during the Uniform Conversion Period, ~~but~~ the Maturity Conversion Period or a Redemption Period, or following an irrevocable election pursuant to Section 14.02(a)(iii)(D), the Company shall not have any obligation to use the same Settlement Method following the Company’s receipt of Shareholder Approval with respect to conversions ~~that occur on~~ with different Conversion ~~Days~~Dates. (~~iii~~A) IfFollowing the Company’s receipt of Shareholder Approval prior to the applicable Flexible Settlement Deadline, ~~in respect of any Conversion Date (or~~ unless the ~~period described in the third immediately succeeding set of parentheses, as the case may be~~Company has made an irrevocable election pursuant to Section 14.02(a)(iii)(D), the Company ~~elects~~ shall, (i) on or prior to the Uniform Settlement Method Election Date, deliver a notice (~~the~~ a “Settlement Notice”) of the relevant Settlement Method in respect of ~~such~~ all conversions for which the relevant Conversion Date occurs during the Uniform Conversion Period (other than, for the avoidance of doubt, conversions occurring during a Redemption Period) to the Trustee (and the Conversion Agent, if not the Trustee) and the Holders, (ii) on or ~~such period~~prior to the Final Settlement Method Election Date, deliver a Settlement Notice in respect of all conversions for which the relevant Conversion Date occurs during the Maturity Conversion Period, to the Trustee (and the Conversion Agent, if other than the Trustee) and the Holders and (iii) in any Redemption Notice, include a notice of the relevant Settlement Method in respect of all conversions for which the relevant Conversion Date occurs in the applicable Redemption Period, to the Trustee (and the Conversion Agent, if other than the Trustee) and the Holders. If the Company has received Shareholder Approval prior to the applicable Flexible Settlement Deadline and the Company does not deliver to the Trustee (and the Conversion Agent, if other than the Trustee) and all Holders a Settlement Notice on or prior to the Uniform Settlement Method Election Date, on or prior to the Final Settlement Election Date or in the applicable Redemption Notice, as the case may be), the Company, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions occurring on or after June 1, 2018, no later than the close of business on the Business Day immediately preceding June 1, 2018). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company ~~shall no longer have~~ shall, with respect to any conversions in respect of the ~~right to elect Cash Settlement or Physical Settlement and the Company shall~~ applicable period, 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~~ , unless the Company shall ~~specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the~~ have previously irrevocably elected a different Specified Dollar Amount ~~per $1,000 principal amount of Notes~~pursuant to Section 14.02(a)(iii)(D). If the Company delivers a Settlement Notice pursuant to this Section 14.02(a)(iii)(A) electing Combination Settlement in respect of ~~its~~ such a 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. (B) Following the Company’s receipt of Shareholder Approval prior to the applicable Flexible Settlement Deadline, if, in respect of any conversion with a Conversion Date other than during the Uniform Conversion Period, the Maturity Conversion Period or a Redemption Period, the Company elects to deliver a Settlement Notice in respect of such Conversion Date, unless the Company has previously made an irrevocable election pursuant to Section 14.02(a)(iii)(D), the Company shall deliver such Settlement Notice to converting Holders and the Trustee (and the Conversion Agent, if other than the Trustee) no later than the close of business on the second Trading Day immediately following the relevant Conversion Date. If the Company has received Shareholder Approval prior to the relevant Conversion Date and the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Stock Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. If the Company delivers a Settlement Notice pursuant to this Section 14.02(a)(iii)(B) electing Combination Settlement in respect of such a 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. (C) Each 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. (D) In respect of any conversion, the Company may, after its receipt of Shareholder Approval but prior to the applicable Flexible Settlement Deadline for such conversion, at its option, irrevocably elect Combination Settlement with a particular Specified Dollar Amount for all such conversions with a Conversion Date subsequent to such notice, by delivering a notice of such election (including the Specified Dollar Amount) to the Holders, the Trustee and the Conversion Agent (if other than the Trustee). If the Company delivers a notice pursuant to this Section 14.02(a)(iii)(D) irremovably 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 notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. (iv) The ~~cash,~~ amount of cash and/or number of shares of Common Stock ~~or combination of cash and shares of Common Stock~~ that the Company shall deliver in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by ~~Physical~~ Stock Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each ~~of the 50 consecutive~~ Trading ~~Days~~ Day during the related ~~Observation~~ Conversion Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, ~~to the Converting Holder~~ in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each ~~of the 50 consecutive~~ Trading ~~Days~~ Day during the related ~~Observation~~ Conversion Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the ~~Observation~~ Conversion Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify in writing 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, effect a book-entry transfer of such Note to the Conversion Agent through the facilities of the Depositary and 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 (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~~ an electronic version thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (~~and,~~ and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be ~~delivered~~ surrendered by a Holder thereof if such Holder has also delivered a Purchase Notice or Fundamental Change ~~Repurchase~~ Purchase Notice to the Company in respect of such Notes and has not validly withdrawn such Purchase Notice or Fundamental Change ~~Repurchase Notice~~ Purchase Notice, as applicable, 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. ~~The~~ Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation (i) in the case of Stock Settlement, on the third Business Day immediately following the relevant Conversion ~~Date~~Date or (ii) in the case of any other Settlement Method, ~~if the Company elects Physical Settlement, or~~ on the third Business Day immediately following the last Trading Day of the ~~relevant Observation~~ Conversion Period~~, in the case of any other Settlement Method~~. If any shares of Common Stock are due to converting Holders, the 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 Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The ~~Conversion Agent~~ Company may refuse to deliver the certificates representing the shares of Common 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 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~~ additional cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date; or (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date or any Fundamental Change Repurchase Date as described in the immediately preceding sentence shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common 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 on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP on the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of 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 (Heritage Insurance 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 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 ~~the Company’s~~ its election, as set forth in this Section 14.02. (i) All conversions (i) for which the relevant Conversion Date occurs on or after ~~June 1~~January 15, ~~2018 shall~~ 2021 or (ii) of Notes called for redemption shall, in each case, be settled using the same Settlement Method. (ii) Except for any conversions ~~that occur on or after June 1, 2018 to the close of business on the Business Day immediately preceding the Maturity Date~~described in Section 14.02(a)(i), the Company shall use the same Settlement Method for all conversions ~~occurring on~~ with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions ~~that occur on~~ with different Conversion ~~Days~~Dates. (iii) If, in respect of any Conversion Date or Notes called for redemption (or the period described in the third immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the ~~Company, through the Trustee,~~ Company shall deliver such Settlement Notice in writing to converting ~~Holders~~ Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (~~or,~~ or (i) in the case of any conversions ~~occurring~~ for which the relevant Conversion Date occurs on or after ~~June 1~~January 15, ~~2018~~2021, no later than the close of business on the ~~Business~~ Scheduled Trading Day immediately preceding ~~June 1~~January 15, ~~2018~~2021 and (ii) in the case of any conversions for Notes called for redemption, the date the Company delivers the Notice of Redemption). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect 60 NY\7714988.8 Cash Settlement or Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not ~~indicate a~~ timely notify converting Holders of the Specified Dollar Amount per $1,000 principal amount of ~~Notes in such Settlement Notice~~Notes, 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 Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, ~~to the Converting Holder~~ in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.. 61 NY\7714988.8 (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 (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (~~and,~~ and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be ~~delivered~~ surrendered by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 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. ~~The~~ Except as set forth in ‎Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the 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. If any shares of Common Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, ~~certificates or a book-entry transfer through the Depositary for~~ the full number of shares of Common Stock to which such Holder shall be ~~entitled~~ entitled, in certificate form or in book-entry format, in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as 62 NY\7714988.8 a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver or refuse to instruct the stock transfer agent to deliver the certificates representing the shares of Common 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 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. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date and the relevant Conversion Date occurs after such Record Date and on or prior to such Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately ~~succeeding~~ following the corresponding Interest Payment Date; or (34) 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 any Fundamental Change Repurchase Date as described in the immediately preceding sentence~~ shall receive the full NY\7714988.8 interest payment due on the Maturity ~~Date or other applicable Interest Payment~~ Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the ~~certificate for any~~ shares of Common Stock ~~delivered~~ shall be issuable upon conversion ~~is registered~~ shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common 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 on for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP on for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected ~~(or is deemed to have elected)~~ Combination Settlement, the full number of shares that shall be 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) Neither the Trustee nor the Conversion Agent (if other than the Trustee) shall have any duty to determine whether any of the conditions to conversion set forth in Section 14.01 have been satisfied.

Appears in 1 contract

Sources: Indenture (TUTOR PERINI 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~~14.09(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common 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 ~~the Company’s~~ its election, as set forth in this Section 14.02. (i) All conversions for which the relevant Conversion Date occurs (x) during the period from, and including, June 15, 2019 to, and including, the close of business on the Business Day immediately preceding the Maturity Date, or (y) after ~~June 1~~the Company’s issuance of a Notice of Redemption and prior to the close of business on the Business Day immediately preceding the Redemption Date, ~~2018~~ in each case, shall be settled using the same Settlement Method. (ii) Except for any conversions ~~that occur on or after June 1, 2018 to the close of business on the Business Day immediately preceding the Maturity Date~~described in Section 14.02(a)(i), the Company shall use the same Settlement Method for all conversions ~~occurring on~~ with the same Conversion Date, but (unless (x) the Company has not received the Conversion Approval, in which case, the Company shall be required to settle the relevant conversion by Combination Settlement with a Specified Dollar Amount of at least $1,000 or (y) the Company has not received the Affiliate Investment Approval, in which case, the Company shall be required to settle the relevant conversion by Cash Settlement for all Affiliated Notes submitted for conversion, as well as any other Notes submitted for conversion with the same Conversion Date as an Affiliated Note), the Company shall not have any obligation to use the same Settlement Method with respect to conversions ~~that occur on~~ with different Conversion ~~Days~~Dates. (iii) IfSubject to this Section 14.02(a), if, in respect of any Conversion ~~Date (or the period described in the third immediately succeeding set of parentheses, as the case may be)~~Date, the Company elects to a Settlement Method, the Company, shall deliver a settlement notice (the “Settlement Notice”) ~~of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the Trustee, shall deliver such Settlement Notice~~ to converting Holders no later than the close of business on the second Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions occurring ~~on or after~~ (x) during the period from, and including, June 115, ~~2018, no later than~~ 2019 to the close of business on the Business Day immediately preceding the Maturity Date, no later than the close of business on June 115, ~~2018~~2019, or (y) after the date of the issuance of a Notice of Redemption and prior to the close of business on the Business Day immediately preceding the Redemption Date, in such Notice of Redemption). Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. ~~Such Settlement Notice shall specify~~ If the ~~relevant Settlement Method and in the case of an election of~~ Company elects (or is deemed to have elected) Combination Settlement, but the ~~relevant Settlement Notice shall indicate~~ Company does not specify the Specified Dollar Amount, the Specified Dollar Amount ~~per~~ will be deemed to be $1,000. (iv) Notwithstanding anything in this Indenture to the contrary, (A) unless and until the Company obtains the Conversion Approval, (x) the number of shares of Common Stock deliverable upon conversion will be subject to the Conversion Share Cap and (y) the Company will be required to elect Combination Settlement with a Specified Dollar Amount of at least $1,000 for all Notes submitted for conversion (which means the Company will be obligated to settle its Conversion Obligation by paying up to at least the principal amount of ~~Notes~~such Notes in cash and delivering shares of Common Stock for the remaining Settlement Amount, if any, in excess of the Specified Dollar Amount) and, if the number of shares of Common Stock deliverable for the Settlement Amount in excess of the Specified Dollar Amount would result in the issuance of shares of Common Stock in excess of the Conversion Share Cap, then the Company shall pay cash in lieu of the shares of Common Stock that would otherwise be deliverable in respect any Trading Day during the relevant Observation Period based on the Daily VWAP for such Trading Day; and (B) unless and until the Company obtains the Affiliate Investment Approval, the Company will be required to elect Cash Settlement for all Affiliated Notes submitted for conversion, as well as any other Notes submitted for conversion with the same Conversion Date as an Affiliated Note. If the Company ~~delivers a Settlement Notice electing~~ receives Conversion Approval and/or Affiliate Investment Approval on any day, it shall so notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing within one Business Day. (v) Subject to this Section 14.02(a) (including for the avoidance of doubt, the provisions of Section 14.02(a)(iv)), prior to the close of business on the Business Day immediately preceding June 15, 2019, the Company may irrevocably elect, in the Company’s sole discretion without the consent of the Holders, to settle all conversions through Combination Settlement ~~in respect of its Conversion Obligation but does not indicate~~ with a Specified Dollar Amount per $1,000 principal amount of Notes equal to $1,000, and cash, shares of Common Stock or a combination thereof in ~~such~~ respect of the remainder, if any, of the Company’s Conversion Obligation (“Net Share Settlement ~~Notice,~~ Election”); provided that any election to settle the remainder shall be made by specifying a Specified Dollar Amount per $1,000 ~~principal amount~~ in accordance with the procedures of ~~Notes~~ this Section 14.02(a)(v). Upon making the Net Share Settlement Election, the Company shall ~~be deemed~~ promptly (x) use its reasonable efforts to ~~be $1,000~~post such information on its website or otherwise publicly disclose this information and (y) provide written notice to the Holders thereof. (ivvi) ~~The~~ With respect to any conversion and subject to this Section 14.02(a), the cash, shares of Common 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 Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion ~~Date~~Date and the Interest Make-Whole Payment, if applicable; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 consecutive Trading Days during the related Observation ~~Period~~Period and the Interest Make-Whole Payment, if applicable; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, ~~to the Converting Holder~~ in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 consecutive Trading Days during the ~~related~~ relevant Observation ~~Period~~Period and the Interest Make-Whole Payment, if applicable. (vvii) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common 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 (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be delivered by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 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. The 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. If any shares of Common Stock are due to converting Holders, the 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 Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common 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 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. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date; or (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date or any Fundamental Change Repurchase Date as described in the immediately preceding sentence shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common 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 on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP on the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of 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 (Cyan 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 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 ~~the Company’s~~ its election, as set forth in this Section 14.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~June~~ January 1, ~~2018~~ 2030 or during a Redemption Period shall be settled using the same Settlement Method. (ii) Except for any conversions ~~that occur~~ for which the relevant Conversion Date occurs during a Redemption Period and any conversions for which the relevant Conversion Date occurs on or after ~~June~~ January 1, ~~2018 to the close of business on the Business Day immediately preceding the Maturity Date~~2030, the Company shall use the same Settlement Method for all conversions ~~occurring on~~ with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions ~~that occur on~~ with different Conversion ~~Days~~Dates. (iii) If, in respect of any Conversion Date (or the period described in the third immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the ~~Company, through the Trustee,~~ Company shall deliver such Settlement Notice to the Trustee, the Conversion Agent, and converting Holders no later than the close of business on the first Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions ~~occurring~~ for which the relevant Conversion Date occurs (i) during a Redemption Period, in the related Redemption Notice or (ii) on or after ~~June~~ January 1, ~~2018~~2030, no later than ~~the close of business on the Business Day immediately preceding June~~ January 1, ~~2018~~2030). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement for such conversion or during such period and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes to be converted shall be deemed to be $1,000. Notwithstanding anything to the contrary in the foregoing, the Company shall be permitted to irrevocably elect Physical Settlement in any Certain Distributions Notification and any such election would be applicable to conversions with Conversion Dates that occur after delivery to the Holders of the Certain Distributions Notification until the Certain Distributions Conversion Period End Date. By notice to Holders, the Trustee and the Conversion Agent, the Company may, prior to the close of business on the Scheduled Trading Day immediately preceding January 1, 2030, at its option, irrevocably elect to satisfy its Conversion Obligation through Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of at least $1,000 for all Conversion Dates occurring subsequent to delivery of such notice and for which another Settlement Method does not otherwise apply or is not otherwise deemed to apply as set forth herein. 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 of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) of such Specified Dollar Amount no later than the related Conversion Date (or in the case of any conversions for which the relevant Conversion Date occurs (i) during a Redemption Period, in the related Redemption Notice as provided in Section 16.02, or (ii) on or after January 1, 2030, no later than the close of business on the Scheduled Trading Day immediately preceding January 1, 2030), or, if the Company does not timely notify Holders, the Trustee and the Conversion Agent (if other than the Trustee), such Specified Dollar Amount shall be the specific amount set forth in the election notice, unless no specific amount was set forth in the election notice, in which case such Specified Dollar Amount shall be $1,000 per $1,000 principal amount of Notes. 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 promptly file a current report on Form 8-K or issue a press release announcing that it has elected to irrevocably fix the Settlement Method. The irrevocable election shall apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such notice; provided, however, that no such election shall affect any Settlement Method theretofore elected (or deemed to be elected) with respect to any Note; provided, further, that any such election that is made during a Redemption Period 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 effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(l). 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 Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion ~~Date~~Date (plus cash in lieu of any fractional share of Common Stock issuable upon conversion); (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 25 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, ~~to the Converting Holder~~ in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 25 consecutive Trading Days during the related Observation ~~Period~~Period (plus cash in lieu of any fractional share of Common Stock issuable upon conversion). (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly 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 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, 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~~ the 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, if required, pay all transfer or similar taxes, if any, pursuant to Section 14.02(e) and ~~(ii)~~ in the case of a Physical Note or a Global Note not approved for processing through the Depositary, (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a ~~facsimile~~ facsimile, PDF or other electronic transmission thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer ~~documents and~~ documents, (4) if required, pay funds equal to ~~interest~~ 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 (5) if required, pay all transfer or similar taxes, if any, pursuant to Section 14.02(e). The Trustee (~~and,~~ and if different, the Conversion Agent) shall promptly notify the 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 ~~delivered~~ surrendered by a Holder thereof if such ~~Holder~~ ▇▇▇▇▇▇ has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 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. ~~The~~ Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the ~~third~~ second Business Day immediately following the relevant Conversion Date, if the Company elects to satisfy its Conversion Obligation through Physical ~~Settlement~~Settlement (provided that, with respect to any Conversion Date following the Special Interest Record Date immediately preceding the Maturity Date where Physical Settlement applies to the related Conversion, the Company will settle any such Conversion on the Maturity Date), or on the ~~third~~ second Business Day immediately following the last Trading Day of the ~~relevant~~ Observation Period, in if the ~~case of~~ Company elects to satisfy its Conversion Obligation through any other Settlement Method. If any shares of Common Stock are due to a converting ~~Holders~~Holder, the 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 Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common 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 Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid ~~interest~~Special Interest, if any, except as set forth below, and the Company shall not be required to adjust the Conversion Rate for any accrued and unpaid Special Interest. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid ~~interest~~Special Interest, if any, to, but ~~not including~~excluding, the relevant Conversion Date. As a result, any 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, any accrued and unpaid ~~interest~~ Special Interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a ~~Regular~~ Special Interest Record Date but prior to the open of business on the immediately following Special Interest Payment Date, Holders of such Notes as of the close of business on such ~~Regular~~ Special Interest Record Date will receive the full amount of ~~interest~~ Special Interest 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~~ 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 Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date; or (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date or any Fundamental Change Repurchase Date as described in the immediately preceding sentence shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common 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 on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP on the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of 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.on

Appears in 1 contract

Sources: Indenture (BILL Holdings, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~14.02~~14.01(c), Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common 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~~ 14.01(c) (“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~~ 14.01(c) (“Combination Settlement”), at its election, and the ~~Company’s election~~Interest Make-Whole Payment, if applicable, as set forth in this Section ~~14.02~~14.01(c); provided, however that if, in respect of any conversion of a Note, the amount of the Interest Make-Whole Payment would exceed $130.44 per $1,000 principal amount of Notes, the Company shall be required to settle such conversion solely in shares of Common Stock. (i) All conversions for which the relevant Conversion Date occurs on or after ~~June~~ January 1, ~~2018~~ 2020 shall be settled using the same Settlement Method. (ii) Except for any conversions ~~that occur~~ for which the relevant Conversion Date occurs on or after ~~June~~ January 1, ~~2018 to the close of business on the Business Day immediately preceding the Maturity Date~~2020, the Company shall use the same Settlement Method for all conversions ~~occurring on~~ with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions ~~that occur on~~ with different Conversion ~~Days~~Dates. (iii) If, in respect of any Conversion Date (or the period described in the third immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, in writing, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions ~~occurring~~ for which the relevant Conversion Date occurs on or after ~~June~~ January 1, ~~2018~~2020, no later than ~~the close of business on the Business Day immediately preceding June~~ January 1, ~~2018~~2020). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. (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 Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion ~~Date~~Date and the Interest Make-Whole Payment, if applicable; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 consecutive Trading Days during the related Observation ~~Period~~Period and the Interest Make-Whole Payment, if applicable; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, ~~to the Converting Holder~~ in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 consecutive Trading Days during the related Observation ~~Period~~Period and the Interest Make-Whole Payment, if applicable. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common 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 (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 attachment or other electronic transmission thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation (and settlement of any Interest Make-Whole Payment) to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer ~~documents~~ documents, (4) if required, pay all transfer and similar taxes as set forth in Section 14.02(d) and Section 14.02(e) and (45) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (~~and,~~ and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be ~~delivered~~ surrendered by a Holder thereof if such ~~Holder~~ ▇▇▇▇▇▇ has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation and Interest Make-Whole Payment, if applicable, 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. ~~The~~ Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion ~~Obligation~~ Obligation, including the Interest Make-Whole Payment, if applicable, on the third Business Day immediately following the relevant Conversion Date, if the Company elects Physical ~~Settlement~~Settlement (unless such Conversion Date is on or after the Regular Record Date immediately preceding the Maturity Date, in which case the Company shall deliver the consideration due in respect of such Conversion Obligation on the Maturity Date), 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. If any shares of Common Stock are due to converting Holders, the 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 Company’s Conversion ~~Obligation~~Obligation together with any Interest Make-Whole Payment, if applicable. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The ~~Conversion Agent~~ Company may refuse to deliver the certificates representing the shares of Common 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 (if other than the Trustee) at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for Notes in respect of which an Interest Make-Whole Payment is payable upon conversion; (2) for conversions following the Regular Record Date immediately preceding the Maturity Date; (23) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately ~~succeeding~~ following the corresponding Interest Payment Date; or (34) 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 Fundamental Change Repurchase Date as described in clause (3) of the immediately preceding sentence and Holders entitled to an Interest Make-Whole Payment upon conversion shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the ~~certificate for any~~ shares of Common Stock ~~delivered~~ shall be issuable upon conversion ~~is registered~~ shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common 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 on for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP on for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected ~~(or is deemed to have elected)~~ Combination Settlement, the full number of shares that shall be 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 (Egalet 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 Company shall pay or and/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~~together, if applicable, with cash 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 ~~the Company’s~~ its election, as set forth in this Section 14.02. (i) All conversions of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period, and all conversions for which the relevant Conversion Date occurs on or after ~~June~~ December 1, ~~2018~~ 2029, shall be settled using the same Settlement ~~Method~~Method (including the same Specified Dollar Amount, if applicable). (ii) Except for any conversions ~~that occur~~ of Called Notes referred to in Section 14.02(a)(i) for which the relevant Conversion Date occurs during a Redemption Period, and any conversions for which the relevant Conversion Date occurs on or after ~~June~~ December 1, ~~2018 to the close of business on the Business Day immediately preceding the Maturity Date~~2029, the Company shall use the same Settlement Method (including the same Specified Dollar Amount, if applicable) for all conversions ~~occurring on~~ with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions ~~that occur on~~ with different Conversion ~~Days~~Dates. (iii) If, in respect of any Conversion Date (or one of the ~~period~~ periods described in the ~~third~~ fourth immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the ~~Company, through the Trustee,~~ Company shall deliver such Settlement Notice in writing to converting Holders (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 ~~occurring~~ of Called Notes for which the relevant Conversion Date occurs during a related Redemption Period, in the relevant Redemption Notice, or (y) any conversions of Notes for which the relevant Conversion Date occurs on or after ~~June~~ December 1, ~~2018~~2029, no later than ~~the close of business on the Business Day immediately preceding June~~ December 1, ~~2018~~2029) (in each case, the “Settlement Method Election Deadline”). If the 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 Company shall no longer have the right to elect Cash Settlement or Physical Settlement for such conversion and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000, 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 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 Optional Redemption, and the related Redemption Date is on or after December 1, 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 1, 2029. By notice to Holders (a copy of which the Company shall concurrently provide to the Trustee and the Conversion Agent (if other than the Trustee)), the Company may, prior to December 1, 2029, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through any Settlement Method that the Company is then permitted to elect (including Combination Settlement 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 (with a written copy to 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 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. 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, 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 Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect immediately after the close of business on the relevant Conversion ~~Date~~Date (plus cash in lieu of any fractional share of Common Stock issuable upon such conversion); (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 40 consecutive VWAP Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or and/or deliver, as the case may be, ~~to the Converting Holder~~ in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 40 consecutive VWAP Trading Days during the related Observation ~~Period~~Period (plus cash in lieu of any fractional share of Common Stock issuable upon such conversion). (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company ~~promptly~~ as soon as reasonably practicable following the last day of the Observation Period. ~~Promptly after~~ Following such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common 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 to the Company 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 (ii) in the case of a Physical Note (1A) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion ~~(or a facsimile thereof)~~ (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes 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, (2B) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3C) if required, furnish appropriate endorsements and transfer documents and (4D) if required, pay to the Company 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). The Trustee (~~and,~~ and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be ~~delivered~~ surrendered by a Holder thereof if such ~~Holder~~ ▇▇▇▇▇▇ has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03. If Subject to any procedures or requirements of the applicable Depositary in the case of any Global Note, if more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. ~~The~~ Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or and/or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the ~~third~~ second Business Day immediately following the relevant Conversion Date, if the Company elects Physical ~~Settlement~~Settlement (provided that, with respect to any Conversion Date occurring after the Regular Record Date immediately preceding the Maturity Date, the Company shall settle the related conversion on the Maturity Date), or on the ~~third~~ second Business Day immediately following the last VWAP Trading Day of the ~~relevant~~ Observation Period, in the case of any other Settlement Method. If any shares of Common Stock are due to a converting ~~Holders~~Holder, the Company shall issue and deliver (or otherwise cause to be ~~issued,~~ issued and ~~deliver to the Conversion Agent or~~ delivered) 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 Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in ~~authorized denominations~~ Authorized Denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue or delivery of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The ~~Conversion Agent~~ Company may refuse to deliver the certificates (or book-entry evidence) representing the shares of Common Stock being issued in a name other than the Holder’s name until the ~~Trustee~~ Company receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section 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 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. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date but prior to the open of business on the immediately following Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on 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~~ provided, however, that no such payment shall be required (1i) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2ii) with respect to conversions of any Called Notes, if the Company has specified a ~~Fundamental Change Repurchase~~ Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date; or (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date or any Fundamental Change Repurchase Date as described in the immediately preceding sentence shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common 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 on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP on the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of 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.R

Appears in 1 contract

Sources: Indenture (MP Materials Corp. / DE)

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 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 ~~the Company’s~~ its election, as set forth in this Section 14.02. (i) All conversions of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period shall be settled using the same Settlement Method, and all conversions for which the relevant Conversion Date occurs on or after ~~June 1~~February 15, ~~2018~~ 2028 shall be settled using the same Settlement Method. (ii) Except for any conversions ~~that occur~~ of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period, and any conversions for which the relevant Conversion Date occurs on or after ~~June 1~~February 15, ~~2018~~ 2028, and except to the ~~close of business on~~ extent the ~~Business Day immediately preceding the Maturity Date~~Company has irrevocably elected Physical Settlement pursuant to Section 14.01(b)(ii) in a notice as described in such Section, the Company shall use the same Settlement Method for all conversions ~~occurring on~~ with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions ~~that occur on~~ with different Conversion ~~Days~~Dates. (iii) If, in respect of any Conversion Date (or any conversions of Called Notes for which the ~~period~~ relevant Conversion Date occurs during the related Redemption Period, any conversions for which the relevant Conversion Date occurs on or after February 15, 2028 or any conversions for which the Company has irrevocably elected Physical Settlement pursuant to Section 14.01(b)(ii) in a notice as described in ~~the third immediately succeeding set of parentheses, as the case may be~~such Section), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the close of business on the Trading Day immediately following the ~~relevant~~ related Conversion Date (or, in the case of any ~~conversions occurring~~ conversion of (i) Called Notes for which the relevant Conversion Date occurs during the related Redemption Period, in the related Notice of Redemption, (ii) for which the relevant Conversion Date occurs on or after ~~June 1~~February 15, ~~2018~~2028, no later than February 15, 2028 or (iii) for which the ~~close of business on~~ Company has irrevocably elected Physical Settlement pursuant to Section 14.01(b)(ii), in the ~~Business Day immediately preceding June 1~~related notice described therein) (in each case, ~~2018~~the “Settlement Method Election Deadline”). If the Company does not elect a Settlement Method prior to the ~~deadline set forth in the immediately preceding sentence~~relevant Settlement Method Election Deadline with respect to any conversion on such Conversion Date or during such period, the Company shall no longer have the right to elect ~~Cash~~ a Settlement ~~or Physical Settlement~~ Method with respect to such conversion and the Company shall be deemed to have elected the Default Settlement Method with respect to such conversion. If the Company timely delivers a Settlement Notice electing Combination Settlement in (or is deemed to have elected Combination Settlement) with respect to a conversion but does not timely notify the converting Holder through the Trustee of ~~its~~ the applicable Specified Dollar Amount, then the Specified Dollar Amount for such conversion will be deemed to be $1,000 per $1,000 principal amount of Notes. For the avoidance of doubt, the Company’s failure to timely elect a Settlement Method or specify the applicable Specified Dollar Amount shall not constitute a Default under this Indenture. The Company may, from time to time, change the Default Settlement Method by sending written notice of the new Default Settlement Method to Holders, the Trustee and the Conversion ~~Obligation~~Agent (if other than the Trustee) prior to February 15, 2028. In addition, the Company may, by written notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee) prior to February 15, 2028, at the Company’s 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 equal to $1,000 or with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes ~~shall be equal to $1,000. Such Settlement Notice shall specify the relevant~~ at or above a specific amount set forth in such election notice, which Settlement Method ~~and in~~ shall apply to all conversions of Notes with a Conversion Date that is on or after the ~~case of an election of Combination Settlement,~~ date the ~~relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes~~Company sends such notice. If the Company ~~delivers a~~ changes the Default Settlement ~~Notice electing~~ Method or elects to irrevocably fix the Settlement Method, in either case, to Combination Settlement ~~in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice,~~ with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes ~~shall~~ at or above a specific amount, the Company shall, after the date of such change or election, as the case may be, inform Holders converting their Notes through the Trustee of such Specified Dollar Amount no later than the relevant Settlement Method Election Deadline, or, if the Company does not timely notify holders, such Specified Dollar Amount will be the specific amount set forth in the 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. Notwithstanding anything to the contrary in this Indenture, no such change in the Default Settlement Method or irrevocable Settlement Method election will affect any Settlement Method theretofore elected (or deemed to be ~~$1,000~~elected) with respect to any Note pursuant to this Section 14.02. Concurrently with providing notice to all Holders of a change in the Default Settlement Method or an election to irrevocably fix the Settlement Method, the Company shall promptly either post an announcement on its website, file a report on Form 8-K (or any successor form) or issue a press release announcing that the Company has made such change to the Default Settlement Method or elected to irrevocably fix the Settlement Method, as the case may be. For the avoidance of doubt, such an irrevocable Settlement Method election, if made, shall be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(m). However, the Company may nonetheless choose to execute such an amendment at the Company’s 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 Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 25 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, ~~to the Converting Holder~~ in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 25 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or 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 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 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 ~~(ii)~~ in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a ~~facsimile~~ facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedures of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (~~and,~~ and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be ~~delivered~~ surrendered by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 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. ~~The~~ Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the ~~third~~ second Business Day immediately following the relevant Conversion Date, if the Company elects Physical ~~Settlement~~Settlement (provided that, with respect to any conversion following the Regular Record Date immediately preceding the Maturity Date where Physical Settlement applies to such conversion, the Company shall settle any such conversion on the Maturity Date), or on the ~~third~~ 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 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 Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common 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 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. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the close of business on the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a ~~Fundamental Change Repurchase~~ Redemption Date that is after a Regular Record Date and on or prior to the ~~Business~~ second Scheduled Trading Day immediately ~~succeeding~~ following the corresponding Interest Payment Date; or (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date or any Fundamental Change Repurchase Date as described in the immediately preceding sentence shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common 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 on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP on the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of 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.Inter

Appears in 1 contract

Sources: Indenture (Etsy 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 Company shall pay or deliver, or cause to be paid or delivered, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common 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 ~~the Company’s~~ its election, as set forth in this Section 14.02. (i) All conversions ~~for which the relevant Conversion Date occurs~~ occurring on or after ~~June 1~~February 15, ~~2018~~ 2025, and all conversions occurring during a Redemption Period, shall be settled using the same Settlement Method. (ii) ~~Except~~ Prior to February 15, 2025, except for any conversions that occur ~~on or after June 1~~during a Redemption Period, ~~2018~~ and subject to the ~~close~~ last paragraph of ~~business on the Business Day immediately preceding the Maturity Date~~Section 14.02(a)(iii), the Company shall use the same Settlement Method for all conversions occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions that occur on different Conversion ~~Days~~Dates. (iii) If, in respect of any Conversion Date (or one of the ~~period~~ periods described in the ~~third~~ fifth immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the ~~Company~~Company shall deliver such Settlement Notice to the Trustee and the Conversion Agent (if other than the Trustee), ~~through~~ and the Trustee, in turn, shall ~~deliver~~ deliver, upon the Company’s written request (which request the Company shall make), such Settlement Notice to converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions occurring (x) during a Redemption Period, in the related Redemption Notice or (y) on or after ~~June 1~~February 15, ~~2018~~2025, no later than ~~the close of business on the Business Day immediately preceding June 1~~February 15, ~~2018~~2025). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar ~~Amount per $1,000 principal amount of Notes~~Amount. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount ~~per $1,000 principal amount of Notes~~ in such Settlement Notice, the Specified Dollar Amount ~~per $1,000 principal amount of Notes~~ shall be deemed to be $1,000. The Company may, by notice to the Holders of the Notes, the Trustee and Conversion Agent (if other than the Trustee) prior to February 15, 2025, irrevocably fix the Settlement Method to any Settlement Method that the Company is then permitted to elect, which shall apply to all conversions with a Conversion Date that is on or after the date the Company sends such notice. Concurrently with providing notice to the Holders of the Notes an election to irrevocably fix the Settlement Method, the Company shall promptly issue a report on Form 8-K or press release announcing that the Company has elected to irrevocably fix the Settlement Method. 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(l). 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 Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder ~~in respect of each $1,000 principal amount of Notes being converted~~ a number of shares of Common Stock equal to the product of (1) the aggregate principal amount of Notes to be converted, divided by $1,000, and (2) the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 40 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the ~~Converting~~ converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 40 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. ~~Promptly~~ The Company shall send such determination and the calculation thereof in reasonable detail or in such detail as requested by the Depositary promptly after such determination (and in any event within one Business Day following the last day of the Observation Period) of 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 Company shall notify~~ to the Trustee and the Conversion Agent (if other than the Trustee~~) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional 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 (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be delivered by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 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. The 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. If any shares of Common Stock are due to converting Holders, the 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 Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common 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 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. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date; or (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date or any Fundamental Change Repurchase Date as described in the immediately preceding sentence shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common 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 on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP on the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of 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 (Cantel Medical 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 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 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 the Company’s election, as set forth in this Section 14.02. (i) All conversions of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period, and all conversions for which the relevant Conversion Date occurs on or after ~~June~~ April 1, ~~2018~~ 2031, shall be settled using the same ~~Settlement Method~~forms and amounts of consideration. (ii) Except for any conversions ~~that occur~~ of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period, and any conversions for which the relevant Conversion Date occurs on or after ~~June~~ April 1, ~~2018 to the close of business on the Business Day immediately preceding the Maturity Date~~2031, the Company shall use the same ~~Settlement Method~~ forms and amounts of consideration for all conversions ~~occurring on~~ with the same Conversion Date, but the Company shall not have any obligation to use the same ~~Settlement Method~~ forms and amounts of consideration with respect to conversions ~~that occur on~~ with different Conversion ~~Days~~Dates. (iii) If, in respect of any Conversion Date (or any conversions of Called Notes for which the ~~period described in~~ relevant Conversion Date occurs during the ~~third immediately succeeding set of parentheses~~related Redemption Period or any conversions for which the relevant Conversion Date occurs on or after April 1, ~~as the case may be~~2031), the Company elects to ~~deliver~~ settle all or a ~~notice (the “Settlement Notice”)~~ portion of its Conversion Obligation in excess of the ~~relevant Settlement Method~~ principal portion of the Notes being converted in cash in respect of such Conversion Date (or such period, as the case may be), the ~~Company, through the Trustee,~~ Company shall ~~deliver such Settlement Notice to~~ inform converting Holders through (and upon a written request to) the Trustee of such election (the “Settlement Notice”) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of (A) any conversions ~~occurring~~ of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period, in the related Notice of Redemption or (B) any conversions of Notes for which the relevant Conversion Date occurs on or after ~~June~~ April 1, ~~2018~~2031, no later than ~~the close of business on the Business Day immediately preceding June~~ April 1, ~~2018~~2031) and the Company shall indicate in such Settlement Notice the percentage of the Conversion Obligation in excess of the principal portion of the Notes being converted that shall be paid in cash (the “Cash Percentage”). If the Company does not elect a ~~Settlement Method~~ Cash Percentage prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect a Cash ~~Settlement~~ Percentage with respect to any conversion on such Conversion Date or ~~Physical Settlement~~ during such period, and the 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 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~~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 Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement~~Amounts, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the Converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 consecutive Trading Days during the related Observation Period. (v) The Daily Net Settlement Amounts (if applicable) and the Daily Conversion Values ~~(if applicable)~~ shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts, the Daily Net Settlement Amounts or (if applicable) and the Daily Conversion ~~Values, as the case may be,~~ Values and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the 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 (if applicable) and the Daily Conversion ~~Values, as the case may be,~~ Values and the amount of cash payable in lieu of delivering any fractional 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 (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a ~~facsimile~~ facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (~~and,~~ and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No ~~Notice of Conversion with respect to any~~ Notes may be ~~delivered~~ surrendered for conversion by a Holder thereof if such ~~Holder~~ ▇▇▇▇▇▇ has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 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. The 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. If any shares of Common Stock are due to a converting ~~Holders~~Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, ~~certificates or a book-entry transfer through the Depositary for~~ the full number of shares of Common Stock to which such Holder shall be ~~entitled~~ entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax or other similar governmental charge due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common 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 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. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of ~~Notes into a combination of cash and shares of Common 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 corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on ~~the~~ such corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately ~~succeeding~~ following the corresponding Interest Payment Date; or (34) 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 Fundamental Change Repurchase Date as described in the immediately preceding sentence~~ shall receive the full interest payment due on the Maturity Date ~~or other applicable Interest Payment Date~~ 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~~ shall be issuable upon conversion ~~is registered~~ shall be treated as a stockholder of record as of the close of business on the ~~relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the~~ last Trading Day of the relevant Observation ~~Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be~~Period. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common 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 ~~on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP on~~ for the last Trading Day of the relevant Observation ~~Period (in the case of Combination Settlement)~~Period. For each Note surrendered for conversion, ~~if the Company has elected (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 of Common Stock remaining after such computation shall be paid in cash.

Appears in 1 contract

Sources: Indenture (Array Technologies, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common 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 ~~the Company’s~~ its election, as set forth in this Section 14.02. (i) All conversions for which the relevant Conversion Date occurs on or after June 115, ~~2018~~ 2029 or during a Redemption Period shall be settled using the same Settlement Method. (ii) Except for any conversions ~~that occur~~ for which the relevant Conversion Date occurs during a Redemption Period and any conversions for which the relevant Conversion Date occurs on or after June 115, ~~2018 to the close of business on the Business Day immediately preceding the Maturity Date~~2029, the Company shall use the same Settlement Method for all conversions ~~occurring on~~ with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions ~~that occur on~~ with different Conversion ~~Days~~Dates. (iii) If, in respect of any Conversion Date (or the period described in the third immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a written notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the ~~Company, through the Trustee,~~ Company shall deliver such Settlement Notice to the Trustee, the Conversion Agent and converting Holders no later than the close of business on the second Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions ~~occurring~~ for which the relevant Conversion Date occurs (i) during a Redemption Period, in the related Redemption Notice or (ii) on or after June 115, ~~2018~~2029, no later than ~~the close of business on the Business Day immediately preceding~~ June 115, ~~2018~~2029). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement for such conversion or during such period and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes to be converted shall be deemed to be $1,000. Notwithstanding anything to the contrary in the foregoing, the Company shall be permitted to irrevocably elect Physical Settlement in any Certain Distributions Notification and any such election would be applicable to conversions with Conversion Dates that occur after delivery to the Holders of the Certain Distributions Notification until the Certain Distributions Conversion Period End Date. By notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to the close of business on the Scheduled Trading Day immediately preceding June 15, 2029, at its option, irrevocably elect to satisfy its Conversion Obligation through Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of at least $1,000 for all Conversion Dates occurring subsequent to delivery of such notice and for which another Settlement Method does not otherwise apply or is not otherwise deemed to apply as set forth above. If the Company irrevocably elects Combination Settlement with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above a specific amount, the Company will, after the date of such election, inform Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) of such Specified Dollar Amount no later than the related Conversion Date (or in the case of any conversions for which the relevant Conversion Date occurs (i) during a Redemption Period, in the related Redemption Notice, or (ii) on or after June 15, 2029, no later than the close of business on the Scheduled Trading Day immediately preceding June 15, 2029), or, if the Company does not timely notify Holders, the Trustee and the Conversion Agent (if other than the Trustee), such Specified Dollar Amount will be the specific amount set forth in the election notice or, if no specific amount was set forth in the election notice, such Specified Dollar Amount will be $1,000 per $1,000 principal amount of Notes. 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; provided, further, that any such election that is made during a Redemption Period 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, will be effective without the need to amend the Indenture or the Notes, including pursuant to Section 10.02. 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 Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion ~~Date~~Date (plus cash in lieu of any fractional share of Common Stock issuable upon conversion); (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 20 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, ~~to the Converting Holder~~ in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 20 consecutive Trading Days during the related Observation ~~Period~~Period (plus cash in lieu of any fractional share of Common Stock issuable upon conversion). (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common 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 Special Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and, if required, pay all transfer or similar taxes, if any, pursuant to Section 14.02(e) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a ~~facsimile~~ facsimile, PDF or other electronic transmission thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer ~~documents and~~ documents, (4) if required, pay funds equal to ~~interest~~ 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 (5) if required, pay all transfer or similar taxes, if any, pursuant to Section 14.02(e). The Trustee (~~and,~~ and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be ~~delivered~~ surrendered by a Holder thereof if such ~~Holder~~ ▇▇▇▇▇▇ has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 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. ~~The~~ Except as set forth in ‎Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the ~~third~~ second Business Day immediately following the relevant Conversion Date, if the Company elects to satisfy its Conversion Obligation through Physical ~~Settlement~~Settlement (provided that, with respect to any Conversion Date on or after the Special Interest Record Date immediately preceding the Maturity Date where Physical Settlement applies to the related conversion, the Company will settle any such conversion on the Maturity Date), or on the ~~third~~ second Business Day immediately following the last Trading Day of the ~~relevant~~ Observation Period, in if the ~~case of~~ Company elects to satisfy its Conversion Obligation through any other Settlement Method. If any shares of Common Stock are due to a converting ~~Holders~~Holder, the 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 Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common 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 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. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid ~~interest~~Special Interest, if any, to, but ~~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, any accrued and unpaid ~~interest~~ Special Interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a ~~Regular~~ Special Interest Record Date but prior to the open of business on the immediately following Special Interest Payment Date, Holders of such Notes as of the close of business on such ~~Regular~~ Special Interest Record Date will receive the full amount of ~~interest payable~~ Special Interest, if any, due 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; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and converted on ~~or prior to the Business Day immediately succeeding~~ the corresponding Special Interest Payment Date; or (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date or any Fundamental Change Repurchase Date as described in the immediately preceding sentence shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common 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 on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP on the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of 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 (Impinj 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 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 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 the Company’s election, as set forth in this Section 14.02. (i) All conversions of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period, and all conversions for which the relevant Conversion Date occurs on or after ~~June 1~~August 15, ~~2018~~ 2028, shall be settled using the same ~~Settlement Method~~forms and amounts of consideration. (ii) Except for any conversions ~~that occur~~ of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period, and any conversions for which the relevant Conversion Date occurs on or after ~~June 1~~August 15, ~~2018 to the close of business on the Business Day immediately preceding the Maturity Date~~2028, the Company shall use the same ~~Settlement Method~~ forms and amounts of consideration for all conversions ~~occurring on~~ with the same Conversion Date, but the Company shall not have any obligation to use the same ~~Settlement Method~~ forms and amounts of consideration with respect to conversions ~~that occur on~~ with different Conversion ~~Days~~Dates. (iii) If, in respect of any Conversion Date (or any conversions of Called Notes for which the ~~period described in~~ relevant Conversion Date occurs during the ~~third immediately succeeding set of parentheses~~related Redemption Period or any conversions for which the relevant Conversion Date occurs on or after August 15, ~~as the case may be~~2028), the Company elects to ~~deliver~~ settle all or a ~~notice (the “Settlement Notice”)~~ portion of its Conversion Obligation in excess of the ~~relevant Settlement Method~~ principal portion of the Notes being converted in cash in respect of such Conversion Date (or such period, as the case may be), the ~~Company, through the Trustee,~~ Company shall ~~deliver such Settlement Notice to~~ inform converting Holders of such election (the “Settlement Notice”) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of (A) any conversions ~~occurring~~ of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period, in the related Redemption Notice, or (B) any conversions of Notes for which the relevant Conversion Date occurs on or after ~~June 1~~August 15, ~~2018~~2028, no later than August 15, 2028) and the ~~close~~ Company shall indicate in such Settlement Notice the percentage of ~~business on~~ the ~~Business Day immediately preceding June 1, 2018~~Conversion Obligation in excess of the principal portion of the Notes being converted that shall be paid in cash (the “Cash Percentage”). If the Company does not ~~elect~~ timely notify Holders of such an election of a ~~Settlement Method~~ Cash Percentage prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect a Cash ~~Settlement~~ Percentage with respect to any conversion on such Conversion Date or ~~Physical Settlement~~ during such period, and the Company shall be deemed to have elected ~~Combination Settlement in~~ a Cash Percentage of 0% with respect ~~of its Conversion Obligation,~~ to such conversion. The Company shall deliver to the Trustee and the ~~Specified Dollar Amount per $1,000 principal amount~~ Conversion Agent (if other than the Trustee) a copy of ~~Notes shall be equal~~ any notice to ~~$1,000. Such Settlement Notice shall specify~~ Holders electing a Cash Percentage concurrently with delivery to the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000Holders. (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 Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement~~Amounts, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the Converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 consecutive Trading Days during the related Observation Period. (v) The Daily Net Settlement Amounts (if applicable) and the Daily Conversion Values ~~(if applicable)~~ shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts, the Daily Net Settlement Amounts or (if applicable) and the Daily Conversion ~~Values, as the case may be,~~ Values and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts, the Daily Net Settlement Amounts or (if applicable) and the Daily Conversion ~~Values, as the case may be,~~ Values and the amount of cash payable in lieu of delivering any fractional 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 (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (~~and,~~ and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be ~~delivered~~ surrendered by a Holder thereof if such ~~Holder~~ ▇▇▇▇▇▇ has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 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. The 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. If any shares of Common Stock are due to a converting ~~Holders~~Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, ~~certificates or a book-entry transfer through the Depositary for~~ the full number of shares of Common Stock to which such Holder shall be ~~entitled~~ entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common 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 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. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of ~~Notes into a combination of cash and shares of Common Stock~~Notes, accrued and unpaid interest ~~will~~ shall be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) for conversions of Called Notes, if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the second Business Day immediately ~~succeeding~~ following the corresponding Interest Payment Date; or (34) 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 Fundamental Change Repurchase Date as described in the immediately preceding sentence~~ shall receive the full interest payment due on the Maturity Date ~~or other applicable Interest Payment Date~~ 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~~ shall be issuable upon conversion ~~is registered~~ shall be treated as a stockholder of record of such shares of Common Stock as of the close of business on the ~~relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the~~ last Trading Day of the relevant Observation ~~Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be~~Period. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common 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 ~~on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP on~~ for the last Trading Day of the relevant Observation ~~Period (in the case of Combination Settlement)~~Period. For each Note surrendered for conversion, ~~if the Company has elected (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 (Western Digital Corp)

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 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 ~~the Company’s~~ its election, as set forth in this Section ~~14.02~~13.02. (i) All conversions ~~for which the relevant Conversion Date occurs~~ occurring on or after ~~June~~ February 1, ~~2018~~ 2022 shall be settled using the same Settlement Method. (ii) ~~Except for any conversions that occur on or after June~~ Prior to February 1, ~~2018 to the close of business on the Business Day immediately preceding the Maturity Date~~2022, the Company shall use the same Settlement Method for all conversions occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions that occur on different Conversion ~~Days~~Dates. (iii) If, in respect of any Conversion Date (or any conversions of Notes occurring during the period ~~described in~~ beginning on, and including, February 1, 2022 and ending on, and including, the ~~third~~ Scheduled Trading Day immediately ~~succeeding set of parentheses~~preceding the Maturity Date, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions occurring on or after ~~June~~ February 1, ~~2018~~2022, no later than ~~the close of business on the Business Day immediately preceding June~~ February 1, ~~2018~~2022). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar ~~Amount per $1,000 principal amount of Notes~~Amount. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount ~~per $1,000 principal amount of Notes~~ in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. (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 Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted ~~cash in~~ an amount in cash equal to the sum of the Daily Conversion Values for each of the 50 40 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, ~~to the Converting Holder~~ in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 40 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of ~~delivering~~ any fractional ~~share of Common Stock~~share, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of ~~delivering~~ fractional shares of Common 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 (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date ~~to which such Holder is not entitled~~ as set forth in Section ~~14.02(h~~13.02(h). The Trustee (and, if different, the Conversion Agent) shall notify the 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 ~~delivered~~ surrendered by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the ~~Company~~ Paying Agent 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. ~~The~~ Except as provided in Section 13.03(b) and in Section 13.07, the 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. If any shares of Common Stock are due to converting Holders, the 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 portion of the Company’s Conversion ~~Obligation~~Obligation that consists of shares of Common Stock, and, on or prior to such issuance, the Company shall give the Conversion Agent notice of the number of shares of Common Stock being so issued and the method by which the issuance shall take place. Any required funds due to a converting Holder in connection with a Cash Settlement or Combination Settlement shall be delivered to the Paying Agent and such Holder, or such Holder’s nominee or nominees, in accordance with the procedures set forth in Section 14.03. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment by the converting Holder of a sum sufficient to cover any ~~documentary, stamp or similar issue or~~ transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common 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 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. The Company’s settlement of the ~~full~~ Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the ~~relevant~~ Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the ~~relevant~~ Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately ~~succeeding~~ following the corresponding Interest Payment Date; or (3) 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 Fundamental Change Repurchase Date as described in the immediately preceding sentence shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be, in each case solely for the purpose of receiving or participating in any dividend, distribution, issuance, share split or combination, tender or exchange offer or any other event that would lead to a Conversion Rate adjustment as described in Section 13.04. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common 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 on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP on the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected ~~(or is deemed to have elected)~~ Combination Settlement, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the ~~relevant~~ applicable Observation Period and any fractional shares remaining after such computation shall be paid in cash. (k) Notwithstanding anything to the contrary herein, no Holder shall be entitled to receive shares of Common Stock upon conversion to the extent (but only to the extent) that such receipt would cause such converting Holder to become, directly or indirectly, a “beneficial owner” (within the meaning of Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) of more than 5.0% of the shares of Common Stock outstanding at such time (the “Limitation”). Any purported delivery of shares of Common Stock upon conversion of Notes shall be void and have no effect to the extent (but only to the extent) that such delivery would result in the converting Holder becoming the beneficial owner of more than the Limitation. If any delivery of shares of Common Stock owed to a Holder upon conversion of Notes is not made, in whole or in part, as a result of the Limitation, the Company’s obligation to make such delivery shall not be extinguished and the Company shall deliver such shares as promptly as practicable after any such converting Holder gives notice to the Company that such delivery would not result in it being the beneficial owner of more than 5.0% of the shares of Common Stock outstanding at such time. The Limitation shall no longer apply following the effective date of any Fundamental Change.

Appears in 1 contract

Sources: Indenture (TPG Specialty Lending, 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 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 ~~the Company’s~~ its election, as set forth in this Section ~~14.02~~13.02. (i) All conversions ~~for which the relevant Conversion Date occurs~~ occurring on or after ~~June~~ August 1, ~~2018~~ 2021 shall be settled using the same Settlement Method. (ii) ~~Except for any conversions that occur on or after June~~ Prior to August 1, ~~2018 to the close of business on the Business Day immediately preceding the Maturity Date~~2021, the Company shall use the same Settlement Method for all conversions occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions that occur on different Conversion ~~Days~~Dates. (iii) If, in respect of any Conversion Date (or any conversions of Notes occurring during the period ~~described in~~ beginning on, and including, August 1, 2021 and ending on, and including, the ~~third~~ Scheduled Trading Day immediately ~~succeeding set of parentheses~~preceding the Maturity Date, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions occurring on or after ~~June~~ August 1, ~~2018~~2021, no later than ~~the close of business on the Business Day immediately preceding June~~ August 1, ~~2018~~2021). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar ~~Amount per $1,000 principal amount of Notes~~Amount. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount ~~per $1,000 principal amount of Notes~~ in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. (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 Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted ~~cash in~~ an amount in cash equal to the sum of the Daily Conversion Values for each of the 50 15 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, ~~to the Converting Holder~~ in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 15 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of ~~delivering~~ any fractional ~~share of Common Stock~~share, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of ~~delivering~~ fractional shares of Common 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 (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~14.02(h~~13.02(h). The Trustee (and, if different, the Conversion Agent) shall notify the 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 ~~delivered~~ surrendered by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the ~~Company~~ Paying Agent 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. ~~The~~ Except as provided in Section 13.03(b) and in Section 13.07, the 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. If any shares of Common Stock are due to converting Holders, the 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 portion of the Company’s Conversion ~~Obligation~~Obligation that consists of shares of Common Stock, and, on or prior to such issuance, the Company shall give the Conversion Agent notice of the number of shares of Common Stock being so issued and the method by which the issuance shall take place. Any required funds due to a converting Holder in connection with a Cash Settlement or Combination Settlement shall be delivered to the Paying Agent and such Holder, or such Holder’s nominee or nominees, in accordance with the procedures set forth in Section 14.03. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment by the converting Holder of a sum sufficient to cover any ~~documentary, stamp or similar issue or~~ transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common 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 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. The Company’s settlement of the ~~full~~ Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the ~~relevant~~ Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the ~~relevant~~ Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on or before the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on such Interest Payment Date on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately ~~succeeding~~ following the corresponding Interest Payment Date; or (3) 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 Fundamental Change Repurchase Date as described in the immediately preceding sentence shall~~ will receive the full interest payment due on the Maturity Date ~~or other applicable Interest Payment Date~~ regardless of whether ~~their~~ such Holders’ 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 treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be, in each case solely for the purpose of receiving or participating in any dividend, distribution, issuance, share split or combination, tender or exchange offer or any other event that would lead to a Conversion Rate adjustment as described in Section 13.04. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common 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 on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP on the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected ~~(or is deemed to have elected)~~ Combination Settlement, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the ~~relevant~~ applicable Observation Period and any fractional shares remaining after such computation shall be paid in cash. (k) Notwithstanding anything to the contrary herein, no Holder shall be entitled to receive shares of Common Stock upon conversion to the extent (but only to the extent) that such receipt would cause such converting Holder to become, directly or indirectly, a “beneficial owner” (within the meaning of Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) of more than 5.0% of the shares of Common Stock outstanding at such time (the “Limitation”). Any purported delivery of shares of Common Stock upon conversion of Notes shall be void and have no effect to the extent (but only to the extent) that such delivery would result in the converting Holder becoming the beneficial owner of more than the Limitation. If any delivery of shares of Common Stock owed to a Holder upon conversion of Notes is not made, in whole or in part, as a result of the Limitation, the Company’s obligation to make such delivery shall not be extinguished and the Company shall deliver such shares as promptly as practicable after any such converting Holder gives notice to the Company that such delivery would not result in it being the beneficial owner of more than 5.0% of the shares of Common Stock outstanding at such time. The Limitation shall no longer apply following the effective date of any Fundamental Change.

Appears in 1 contract

Sources: Indenture (Ares Capital 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 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 ~~the Company’s~~ its election, as set forth in this Section 14.02. (i) All conversions ~~for which the relevant Conversion Date occurs~~ occurring on or after ~~June~~ October 1, 2018 shall be settled using the same Settlement Method. (ii) Except for any conversions that occur ~~on or after June~~ during the period from, and including, October 1, 2018 to the close of business on the ~~Business~~ second Scheduled Trading Day immediately preceding the Maturity Date, the Company shall use the same Settlement Method for all conversions occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions that occur on different Conversion Days. (iii) If, in respect of any Conversion Date (or the period described in the third immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions occurring ~~on or after June~~ during the period from, and including, October 1, ~~2018~~2018 to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, no later than the close of business on ~~the~~ Business Day immediately preceding ~~June~~ October 1, 2018). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to such conversion or during such period and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. (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 Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 25 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, ~~to the Converting Holder~~ in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 25 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values (and the sum of such Daily Settlement Amounts or Daily Conversion Values), as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common ~~Stock~~Stock for each conversion of Notes. 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 (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be delivered by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 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. The 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. If any shares of Common Stock are due to converting Holders, the 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 Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common 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 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. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than ~~cancelled~~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 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 Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date; or (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date or ~~any~~ Fundamental Change Repurchase Date as described in clause (2) in the immediately preceding sentence shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common 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 on for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP on for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be 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 (Homeaway 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 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 ~~the Company’s~~ its election, as set forth in this Section 14.02. (i) All conversions (i) for which the relevant Conversion Date occurs on or after June 115, ~~2018 shall~~ 2026 or (ii) of Notes called for redemption shall, in each case, be settled using the same Settlement Method. (ii) Except for any conversions ~~that occur on or after June 1, 2018 to the close of business on the Business Day immediately preceding the Maturity Date~~described in Section 14.02(a)(i), the Company shall use the same Settlement Method for all conversions ~~occurring on~~ with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions ~~that occur on~~ with different Conversion ~~Days~~Dates. (iii) If, in respect of any Conversion Date or Notes called for redemption (or the period described in the third immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the ~~Company, through the Trustee,~~ Company shall deliver such Settlement Notice in writing to converting ~~Holders~~ Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (~~or,~~ or (i) in the case of any conversions ~~occurring~~ for which the relevant Conversion Date occurs on or after June 115, ~~2018~~2026, no later than the close of business on the ~~Business~~ Scheduled Trading Day immediately preceding June 115, ~~2018~~2026 and (ii) in the case of any conversions for Notes called for redemption, the date the Company delivers the Redemption Notice). If the Company does not elect a Settlement Method for a conversion prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or ~~Physical~~ Combination Settlement for such conversion and the Company shall be deemed to have elected ~~Combination~~ Physical Settlement in respect of its Conversion Obligation~~, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000~~. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination ~~Settlement~~Settlement for a conversion, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not ~~indicate a~~ timely notify converting Holders of the Specified Dollar Amount per $1,000 principal amount of ~~Notes in such Settlement Notice~~Notes, 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 Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 25 consecutive Trading Days during the related Observation Period; and (C) if the Company elects ~~(or is deemed to have elected)~~ to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, ~~to the Converting Holder~~ in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 25 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common 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 (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be delivered by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 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. The 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. If any shares of Common Stock are due to converting Holders, the 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 Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common 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 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. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date; or (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date or any Fundamental Change Repurchase Date as described in the immediately preceding sentence shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common 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 on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP on the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of 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 (Chesapeake 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, the Company shall pay or and/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 ~~the Company’s~~ its election, as set forth in this Section 14.02. (i) All conversions for which the relevant Conversion Date occurs ~~on or after June 1~~during the period from, ~~2018~~ and including, August 15, 2019 to, and including, the second Scheduled Trading Day immediately preceding the Maturity Date, shall be settled using the same Settlement Method. (ii) Except for any conversions ~~that occur on or after June 1, 2018 to the close of business on the Business Day immediately preceding the Maturity Date~~described in Section 14.02(a)(i), the Company shall use the same Settlement Method for all conversions ~~occurring on~~ with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions ~~that occur on~~ with different Conversion ~~Days~~Dates. (iii) If, in respect of any Conversion Date (or the period described in the third immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the ~~Trustee~~Trustee (upon written instruction from the Company to send such notice), shall deliver such Settlement Notice to converting Holders no later than the close of business on the second Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions occurring during the period from, and including, August 15, 2019 to the close of business on ~~or after June 1, 2018~~the second Scheduled Trading Day immediately preceding the Maturity Date, no later than the close of business on ~~the Business Day immediately preceding June 1~~August 15, ~~2018~~2019). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing (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 in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. (iv) ~~The~~ With respect to any conversion, 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 Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 80 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, ~~to the Converting Holder~~ in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 80 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) in writing of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. ~~The~~ Neither the Trustee ~~and~~ nor the Conversion Agent (if other than the Trustee) shall have no any 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 provide an irrevocable notice (a “Notice of Conversion”) by (i) in the case of a Global Note, ~~comply~~ complying with the procedures of the Depositary in effect at that time and, if required, ~~pay~~ (1) paying 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 (2) paying all transfer and similar taxes as set forth in Section 14.02(d) and Section 14.02(e) and (ii) in the case of a Physical Note (1) ~~complete~~completing, manually ~~sign~~ signing and ~~deliver an~~ delivering the irrevocable written notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile thereof) ~~(a “Notice of Conversion”)~~ at the office of the Conversion Agent and ~~state~~ stating 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~~ surrendering such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, ~~furnish~~ furnishing appropriate endorsements and transfer ~~documents and~~ documents, (4) if required, ~~pay~~ paying 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 (5) paying all transfer and similar taxes as set forth in Section 14.02(d) and Section 14.02(e). The Trustee (~~and,~~ and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be ~~delivered~~ surrendered by a Holder thereof if such ~~Holder~~ ▇▇▇▇▇▇ has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 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. ~~The~~ Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the 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. If any shares of Common Stock are due to converting Holders, the 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 Company’s Conversion Obligation. (d) In case any Physical Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, 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~~ must 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 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. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but ~~not including~~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 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~~ beginning after the close of business on any Regular Record Date to and ending at 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~~ Notes surrendered for conversion after the close of business on the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the second Business Day immediately ~~succeeding~~ following the corresponding Interest Payment Date; or (3) 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 and any Fundamental Change Repurchase Date as described in clause (2) of the immediately preceding sentence shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date regardless of whether their Notes have been converted or repurchased, as applicable, following such Regular Record Date. (i) The Person in whose name the ~~certificate for any~~ shares of Common Stock ~~delivered~~ shall be issuable upon conversion ~~is registered~~ shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company ~~elects~~ elects, or is required, to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company ~~elects to satisfy~~ 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. (j) The 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 on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP on the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected ~~(or is deemed to have elected)~~ Combination Settlement, the full number of 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 (Inotek Pharmaceuticals Corp)

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 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 60 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 the Company’s election, as set forth in this Section ‎Section 14.02. (i) All conversions of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period, and all conversions for which the relevant Conversion Date occurs on or after ~~June~~ July 1, ~~2018~~ 2027, shall be settled using the same ~~Settlement Method~~forms and amounts of consideration. (ii) Except for any conversions ~~that occur~~ of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period, and any conversions for which the relevant Conversion Date occurs on or after ~~June~~ July 1, ~~2018 to the close of business on the Business Day immediately preceding the Maturity Date~~2027, the Company shall use the same ~~Settlement Method~~ forms and amounts of consideration for all conversions ~~occurring on~~ with the same Conversion Date, but the Company shall not have any obligation to use the same ~~Settlement Method~~ forms and amounts of consideration with respect to conversions ~~that occur on~~ with different Conversion ~~Days~~Dates. (iii) If, in respect of any Conversion Date (or any conversions of Called Notes for which the ~~period described in~~ relevant Conversion Date occurs during the ~~third immediately succeeding set of parentheses~~related Redemption Period or any conversions for which the relevant Conversion Date occurs on or after July 1, ~~as the case may be~~2027), the Company elects to ~~deliver~~ settle all or a ~~notice (the “Settlement Notice”)~~ portion of its Conversion Obligation in excess of the ~~relevant Settlement Method~~ principal portion of the Notes being converted in cash in respect of such Conversion Date (or such period, as the case may be), the ~~Company~~Company shall inform converting Holders, ~~through~~ the Trustee and the Conversion Agent (if other than the Trustee~~, shall deliver~~ ) of such election (the “Settlement ~~Notice to converting Holders~~ Notice”) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of (A) any conversions ~~occurring~~ of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period, in the related Notice of Redemption or (B) any conversions of Notes for which the relevant Conversion Date occurs on or after ~~June~~ July 1, ~~2018~~2027, no later than ~~the close of business on the Business Day immediately preceding June~~ July 1, ~~2018~~2027) and the Company shall indicate in such Settlement Notice the percentage of the Conversion Obligation in excess of the principal portion of the Notes being converted that shall be paid in cash (the “Cash Percentage”). If the Company does not elect a ~~Settlement Method~~ Cash Percentage prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect a Cash ~~Settlement~~ Percentage with respect to any conversion on such Conversion Date or ~~Physical Settlement~~ during such period, and the 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 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~~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 Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement~~Amounts, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the Converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 consecutive Trading Days during the related Observation Period. (v) The Daily Net Settlement Amounts (if applicable) and the Daily Conversion Values ~~(if applicable)~~ shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts, the Daily Net Settlement Amounts or (if applicable) and the Daily Conversion ~~Values, as the case may be,~~ Values and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts, the Daily Net Settlement Amounts or (if applicable) and the Daily Conversion ~~Values, as the case may be,~~ Values and the amount of cash payable in lieu of delivering any fractional 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 (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a ~~facsimile~~ facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in ~~Section~~ ‎Section 14.02(h). The Trustee (~~and,~~ and if different, the Conversion Agent) shall notify the 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 ~~delivered~~ surrendered for conversion by a Holder thereof if such ~~Holder~~ ▇▇▇▇▇▇ has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with ~~Section~~ ‎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. The 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. If any shares of Common Stock are due to a converting ~~Holders~~Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, ~~certificates or a book-entry transfer through the Depositary for~~ the full number of shares of Common Stock to which such Holder shall be ~~entitled~~ entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common 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 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. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of ~~Notes into a combination of cash and shares of Common 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 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 Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately ~~succeeding~~ following the corresponding Interest Payment Date; or (34) 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 (i) the Maturity Date, (ii) any Redemption Date or described in clause (2) of the immediately preceding sentence and (iii) any Fundamental Change Repurchase Date as described in clause (3) of the immediately preceding ~~sentence~~ sentence, as applicable, shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name ~~the certificate for~~ any shares of Common Stock ~~delivered~~ shall be issuable upon conversion ~~is registered~~ shall be treated as a stockholder of record as of the close of business on the ~~relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the~~ last Trading Day of the relevant Observation ~~Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be~~Period. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common 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 ~~on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP on~~ for the last Trading Day of the relevant Observation ~~Period (in the case of Combination Settlement)~~Period. For each Note surrendered for conversion, ~~if the Company has elected (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 (Semtech 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 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 ~~the Company’s~~ its election, as set forth in this Section 14.02. Prior to August 15, 2018, the Company may irrevocably elect, in its sole discretion without the consent of the Holders, Combination Settlement with a Specified Dollar Amount to be determined by the Company (an “Irrevocable Election”) for all conversions subsequent to the date of such election; provided, however, that unless and until the Company has obtained stockholder approval to issues shares of the Common Stock in excess of the Aggregate Share Cap upon conversion of the Notes in accordance with the listing standards of The NASDAQ Global Market the Company shall be required to elect Combination Settlement with a Specified Dollar Amount of at least $1,000 for all Notes submitted for conversion. If the Company makes such an election, it shall notify each Holder, the Trustee and the Paying Agent and the Conversion Agent (if other than the Trustee) in writing. (i) All conversions for which the relevant Conversion Date occurs ~~on or after June 1~~during the period from, and including, August 15, 2018 to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date shall be settled using the same Settlement Method. (ii) Except for any conversions ~~that occur on or after June 1~~for which the relevant Conversion Date occurs during the period from, and including, August 15, 2018 to the close of business on the ~~Business~~ second Scheduled Trading Day immediately preceding the Maturity Date, the Company shall use the same Settlement Method for all conversions occurring on the same Conversion Date, ~~but~~ but, unless the Company shall have made an Irrevocable Election, the Company shall not have any obligation to use the same Settlement Method with respect to conversions that occur on different Conversion ~~Days~~Dates. (iii) If, in respect of any Conversion Date (or the period described in the third immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the close of business on the second Scheduled Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions occurring from, and including, August 15, 2018 to the close of business on ~~or after June 1, 2018~~the second Scheduled Trading Day immediately preceding the Maturity Date, no later than the close of business on the Business Day immediately preceding ~~June 1~~August 15, 2018). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement during such period and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount ~~per $1,000 principal amount of Notes~~ shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar ~~Amount per $1,000 principal amount of Notes~~Amount. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount ~~per $1,000 principal amount of Notes~~ in such Settlement Notice, the Specified Dollar Amount ~~per $1,000 principal amount of Notes~~ shall be deemed to be $1,000. (iv) Notwithstanding anything else in this Section 14.02 to the contrary, unless and until the Company obtains stockholder approval to issue more than 13,164,951 shares of the Common Stock, which is 19.99% of the Common Stock outstanding on November 18, 2013 (the “Aggregate Share Cap”), upon conversion of the Notes in accordance with the listing standards of The NASDAQ Global Market, (x) the Company shall be required to elect Combination Settlement with a Specified Dollar Amount of at least $1,000 for all Notes submitted for conversion, and (y) if the number of shares of Common Stock deliverable for conversion value in excess of the Specified Dollar Amount is greater than the Conversion Share Cap, then the number of shares to be delivered by the Company shall be capped at the Conversion Share Cap and the Company shall pay cash in lieu of such shares of Common Stock that would otherwise be deliverable. Such cash amount in clause (y) shall be determined based on the Daily VWAP for each Trading Day during the relevant Observation Period. The Aggregate Share Cap will not be adjusted for any increase in the applicable Conversion Rate (except in the case of a share split or share combination of the Common Stock as described in Section 14.04(a)). The Conversion Share Cap and the Aggregate Share Cap will apply until the Company has obtained stockholder approval to issues shares of the Common Stock in excess of the Aggregate Share Cap upon conversion of the Notes in accordance with the listing standards of The NASDAQ Global Market. The Company agrees to use its reasonable best efforts to include for vote by the stockholders of the Company during the next annual stockholder meeting of the Company the approval, in accordance with the listing standards of The NASDAQ Global Market, of the issuance of shares of Common Stock upon conversion of the Notes in excess of the Aggregate Share Cap. (v) 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 Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 consecutive Trading Days during the ~~related~~ relevant Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, ~~to the Converting Holder~~ in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 consecutive Trading Days during the ~~related~~ relevant Observation Period, subject to the Conversion Share Cap. (vvi) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common 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 (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer ~~documents~~ documents, (4) if required, pay all transfer and similar taxes as set forth in Sections 14.02(d) and (4e) and (5) if required, 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). The Trustee (~~and,~~ and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be ~~delivered~~ surrendered by a Holder thereof if such ~~Holder~~ ▇▇▇▇▇▇ has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 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. The 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~~Settlement (provided that, with respect to any Conversion Date occurring on or after August 15, 2018, the Company shall settle any such conversion on the Maturity Date), 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. If any shares of Common Stock are due to converting Holders, the 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 Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common 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 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. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than ~~cancelled~~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 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 Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the ~~Business~~ Scheduled Trading Day immediately succeeding the corresponding Interest Payment Date; or (3) 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 Fundamental Change Repurchase Date ~~as described in the immediately preceding sentence~~ shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common 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 on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP on the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of 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 (Horizon Pharma, 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 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 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 the Company’s election, as set forth in this Section ‎Section 14.02. (i) All conversions of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period, and all conversions for which the relevant Conversion Date occurs on or after ~~June 1~~May 15, ~~2018~~ 2028, shall be settled using the same ~~Settlement Method~~forms and amounts of consideration. (ii) Except for any conversions ~~that occur~~ of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period, and any conversions for which the relevant Conversion Date occurs on or after ~~June 1~~May 15, ~~2018 to the close of business on the Business Day immediately preceding the Maturity Date~~2028, the Company shall use the same ~~Settlement Method~~ forms and amounts of consideration for all conversions ~~occurring on~~ with the same Conversion Date, but the Company shall not have any obligation to use the same ~~Settlement Method~~ forms and amounts of consideration with respect to conversions ~~that occur on~~ with different Conversion ~~Days~~Dates. (iii) If, in respect of any Conversion Date (or any conversions of Called Notes for which the ~~period described in~~ relevant Conversion Date occurs during the ~~third immediately succeeding set of parentheses~~related Redemption Period or any conversions for which the relevant Conversion Date occurs on or after May 15, ~~as the case may be~~2028), the Company elects to ~~deliver~~ settle all or a ~~notice (the “Settlement Notice”)~~ portion of its Conversion Obligation in excess of the ~~relevant Settlement Method~~ principal portion of the Notes being converted in cash in respect of such Conversion Date (or such period, as the case may be), the ~~Company~~Company shall inform converting Holders, ~~through~~ the Trustee and the Conversion Agent (if other than the Trustee~~, shall deliver~~ ) of such election (the “Settlement ~~Notice to converting Holders~~ Notice”) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of (A) any conversions ~~occurring~~ of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period, in the related Notice of Redemption, or (B) any conversions of Notes for which the relevant Conversion Date occurs on or after ~~June 1~~May 15, ~~2018~~2028, no later than May 15, 2028) and the ~~close~~ Company shall indicate in such Settlement Notice the percentage of ~~business on~~ the ~~Business Day immediately preceding June 1, 2018~~Conversion Obligation in excess of the principal portion of the Notes being converted that shall be paid in cash (the “Cash Percentage”). If the Company does not ~~elect~~ timely notify Holders of such an election of a ~~Settlement Method~~ Cash Percentage prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect a Cash ~~Settlement~~ Percentage with respect to any conversion on such Conversion Date or ~~Physical Settlement~~ during such period, and the 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 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~~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 Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement~~Amounts, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the Converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 consecutive Trading Days during the related Observation Period. (v) The Daily Net Settlement Amounts (if applicable) and the Daily Conversion Values ~~(if applicable)~~ shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts, the Daily Net Settlement Amounts or (if applicable) and the Daily Conversion ~~Values, as the case may be,~~ Values and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts, the Daily Net Settlement Amounts or (if applicable) and the Daily Conversion ~~Values, as the case may be,~~ Values and the amount of cash payable in lieu of delivering any fractional 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 (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a ~~facsimile~~ facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in ~~Section~~ ‎Section 14.02(h). The Trustee (~~and,~~ and if different, the Conversion Agent) shall notify the 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 ~~delivered~~ surrendered for conversion by a Holder thereof if such ~~Holder~~ ▇▇▇▇▇▇ has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with ~~Section~~ ‎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. The 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. If any shares of Common Stock are due to a converting ~~Holders~~Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, ~~certificates or a book-entry transfer through the Depositary for~~ the full number of shares of Common Stock to which such Holder shall be ~~entitled~~ entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common 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 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. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of ~~Notes into a combination of cash and shares of Common Stock~~Notes, accrued and unpaid interest ~~will~~ shall be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the close of business on the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately ~~succeeding~~ following the corresponding Interest Payment Date; or (34) 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 Fundamental Change Repurchase Date as described in the immediately preceding sentence~~ shall receive the full interest payment due on the Maturity Date ~~or other applicable Interest Payment Date~~ 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~~ shall be issuable upon conversion ~~is registered~~ shall be treated as a stockholder of record of such shares of Common Stock as of the close of business on the ~~relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the~~ last Trading Day of the relevant Observation ~~Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be~~Period. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common 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 ~~on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP on~~ for the last Trading Day of the relevant Observation ~~Period (in the case of Combination Settlement)~~Period. For each Note surrendered for conversion, ~~if the Company has elected (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 (Tetra Tech 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 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 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 the Company’s election, as set forth in this Section 14.02. (i) All conversions of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period, and all conversions for which the relevant Conversion Date occurs on or after ~~June 1~~September 15, ~~2018~~ 2027, shall be settled using the same ~~Settlement Method~~forms and amounts of consideration. (ii) Except for any conversions ~~that occur~~ of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period, and any conversions for which the relevant Conversion Date occurs on or after ~~June 1~~September 15, ~~2018 to the close of business on the Business Day immediately preceding the Maturity Date~~2027, the Company shall use the same ~~Settlement Method~~ forms and amounts of consideration for all conversions ~~occurring on~~ with the same Conversion Date, but the Company shall not have any obligation to use the same ~~Settlement Method~~ forms and amounts of consideration with respect to conversions ~~that occur on~~ with different Conversion ~~Days~~Dates. (iii) If, in respect of any Conversion Date (or any conversions of Called Notes for which the ~~period described in~~ relevant Conversion Date occurs during the ~~third immediately succeeding set of parentheses~~related Redemption Period or any conversions for which the relevant Conversion Date occurs on or after September 15, ~~as the case may be~~2027), the Company elects to ~~deliver~~ settle all or a ~~notice (the “Settlement Notice”)~~ portion of its Conversion Obligation in excess of the ~~relevant Settlement Method~~ principal portion of the Notes being converted in cash in respect of such Conversion Date (or such period, as the case may be), the ~~Company~~Company shall inform converting Holders, ~~through~~ the Trustee and the Conversion Agent (if other than the Trustee~~, shall deliver~~ ) of such election (the “Settlement ~~Notice to converting Holders~~ Notice”) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of (A) any conversions ~~occurring~~ of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period, in the related Notice of Redemption or (B) any conversions of Notes for which the relevant Conversion Date occurs on or after ~~June 1~~September 15, ~~2018~~2027, no later than September 15, 2027) and the ~~close~~ Company shall indicate in such Settlement Notice the percentage of ~~business on~~ the ~~Business Day immediately preceding June 1, 2018~~Conversion Obligation in excess of the principal portion of the Notes being converted that shall be paid in cash (the “Cash Percentage”). If the Company does not elect a ~~Settlement Method~~ Cash Percentage prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect a Cash ~~Settlement~~ Percentage with respect to any conversion on such Conversion Date or ~~Physical Settlement~~ during such period, and the 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 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~~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 Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement~~Amounts, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the Converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 consecutive Trading Days during the related Observation Period. (v) The Daily Net Settlement Amounts (if applicable) and the Daily Conversion Values ~~(if applicable)~~ shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts, the Daily Net Settlement Amounts or (if applicable) and the Daily Conversion ~~Values, as the case may be,~~ Values and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts, the Daily Net Settlement Amounts or (if applicable) and the Daily Conversion ~~Values, as the case may be,~~ Values and the amount of cash payable in lieu of delivering any fractional 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 (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a ~~facsimile~~ facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (~~and,~~ and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No ~~Notice of Conversion with respect to any~~ Notes may be ~~delivered~~ surrendered for conversion by a Holder thereof if such ~~Holder~~ ▇▇▇▇▇▇ has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 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. The 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. If any shares of Common Stock are due to converting Holders, the 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 Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common 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 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. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date; or (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date or any Fundamental Change Repurchase Date as described in the immediately preceding sentence shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common 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 on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP on the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of 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 (Axon Enterprise, 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 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 ~~the Company’s~~ its election, as set forth in this Section 14.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~June~~ January 1, ~~2018~~ 2020, and all conversions for which the relevant Conversion Date occurs on or after the Company’s issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date, shall be settled using the same Settlement Method. (ii) Except for any conversions ~~that occur~~ for which the relevant Conversion Date occurs on or after ~~June~~ the Company’s issuance of a Redemption Notice but prior to the related Redemption Date and any conversions for which the relevant Conversion Date occurs on or after January 1, ~~2018 to the close of business on the Business Day immediately preceding the Maturity Date~~2020, the Company shall use the same Settlement Method for all conversions ~~occurring on~~ with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions ~~that occur on~~ with different Conversion ~~Days~~Dates. (iii) If, in respect of any Conversion Date (or one of the ~~period~~ periods described in the third immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions ~~occurring~~ for which the relevant Conversion Date occurs (x) on or after ~~June~~ 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 January 1, ~~2018~~2020, no later than ~~the close of business on the Business Day immediately preceding June~~ January 1, ~~2018~~2020). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. (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 Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 60 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, ~~to the Converting Holder~~ in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 60 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common 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 (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (~~and,~~ and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be ~~delivered~~ surrendered by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 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. ~~The~~ Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the 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. If any shares of Common Stock are due to converting Holders, the 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 Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, 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 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. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date ~~will~~ 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 Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately ~~succeeding~~ following the corresponding Interest Payment Date; or (34) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date ~~or any Fundamental Change Repurchase Date as described in the immediately preceding sentence~~ shall receive the full interest payment due on the Maturity ~~Date or other applicable Interest Payment~~ Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the ~~certificate for any~~ shares of Common Stock ~~delivered~~ shall be issuable upon conversion ~~is registered~~ shall ~~be treated as a stockholder~~ become the holder of record of such shares as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the 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. (j) The 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 on for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP on for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Sources: First Supplemental Indenture (Echo Global Logistics, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this ~~Section~~ ‎Section 14.02, ~~Section~~ ‎Section 14.03(b) and ~~Section~~ ‎Section 14.07(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common Stock, ~~together with cash~~together, if applicable, with cash 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 ~~the Company’s~~ its election, as set forth in this ~~Section~~ ‎Section 14.02. (i) All conversions of Notes called for redemption (or deemed called for redemption pursuant to ‎Section 14.01(b)(v)) for which the relevant Conversion Date occurs during the related Redemption Period, and all conversions for which the relevant Conversion Date occurs on or after ~~June 1~~March 13, ~~2018~~ 2025, shall be settled using the same Settlement Method. (ii) Except for any conversions ~~that occur~~ referred to in ‎Section 14.02(a)(i) for which the relevant Conversion Date occurs during a Redemption Period, and any conversions for which the relevant Conversion Date occurs on or after ~~June 1~~March 13, ~~2018 to the close of business on the Business Day immediately preceding the Maturity Date~~2025, the Company shall use the same Settlement Method for all conversions ~~occurring on~~ with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions ~~that occur on~~ with different Conversion ~~Days~~Dates. (iii) If, in respect of any Conversion Date (or the period described in the ~~third~~ fourth immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the ~~Company, through the Trustee,~~ Company shall deliver such Settlement Notice in writing to converting Holders (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 ~~occurring~~ of Notes called for redemption (or deemed called for redemption pursuant to ‎Section 14.01(b)(v)) for which the relevant Conversion Date occurs during a related Redemption Period, in the relevant Redemption Notice, or (y) any conversions of Notes for which the relevant Conversion Date occurs on or after ~~June 1~~March 13, ~~2018~~2025, no later than March 13, 2025). If the ~~close of business~~ Company calls all or any Notes for redemption and the related Redemption Date is on or after March 13, 2025, then the ~~Business Day immediately preceding June 1~~Settlement Method that the Company elects to apply for conversions pursuant to ‎Section 14.01(b)(v) 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 March 13, ~~2018)~~2025. If the 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 Company shall no longer have the right to elect Cash Settlement or Physical Settlement for such conversion and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000, 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 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. By notice to Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to March 13, 2025, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through any Settlement Method that the Company is then permitted to elect for all Conversion Dates occurring subsequent to delivery of such notice. 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, 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 Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect immediately after the close of business on the relevant Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 40 consecutive Trading Days during the related Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, ~~to the Converting Holder~~ in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 40 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company ~~promptly~~ as soon as reasonably practicable following the last day of the Observation Period. ~~Promptly after~~ Following such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common 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 to the Company 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 (ii) in the case of a Physical Note (1) complete, manually sign and deliver an a medallion-stamped guaranteed irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion ~~(or a facsimile thereof)~~ (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay to the Company 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). The Trustee (~~and,~~ and if different, the Conversion Agent) shall notify the 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 ~~delivered~~ surrendered by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with ~~Section~~ ‎Section 15.03. If Subject to any procedures or requirements of the applicable Depositary in the case of any Global Note, if more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b‎(b) above. ~~The~~ Except as set forth in ‎‎Section 14.03(b) and ‎Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the ~~third~~ second Business Day immediately following the relevant Conversion Date, if the Company elects Physical ~~Settlement~~Settlement (provided that, with respect to any Conversion Date occurring after the Regular Record Date immediately preceding the Maturity Date, the Company shall settle the related conversion on the Maturity Date), or on the ~~third~~ 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 Company shall issue and deliver (or otherwise cause to be ~~issued,~~ issued and ~~deliver to the Conversion Agent or~~ delivered) 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 Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in ~~authorized denominations~~ Authorized Denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue or delivery of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The ~~Conversion Agent~~ Company may refuse to deliver the certificates (or book-entry evidence) representing the shares of Common Stock being issued in a name other than the Holder’s name until the ~~Trustee~~ Company receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in ~~Section~~ ‎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 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. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; ~~provided~~ provided, however, that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately ~~succeeding~~ following the corresponding Interest Payment Date; or (34) 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 any Fundamental Change Repurchase Date as described in the immediately preceding sentence~~ shall receive the full interest payment due on the Maturity Date ~~or other applicable Interest Payment Date~~ in cash regardless of whether their Notes have been converted following such Regular Record Date, and the converting Holder shall not be required to make a corresponding payment. (i) The Person in whose name ~~the certificate for~~ any shares of Common Stock ~~delivered~~ shall be issuable upon conversion ~~is registered~~ shall be treated as a stockholder of record of such shares as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the 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. (j) The 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 on for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP on for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). ~~For each Note surrendered for conversion, if the Company has elected (~~Subject to any procedures 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.require

Appears in 1 contract

Sources: Indenture (LendingTree, 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 Company ~~shall~~ shall, at its election, pay or deliver, as the case may be, to the converting Holder, in ~~respect~~ full satisfaction of ~~each $1,000 principal amount of Notes being converted~~its Conversion Obligation, cash (“Cash Settlement”), shares of 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 the Company’s election,~~ as set forth in this Section ~~14.02~~9.02. (i1) All conversions ~~for which the relevant Conversion Date occurs~~ occurring on or after ~~June 1~~October 15, ~~2018~~ 2024 shall be settled using the same Settlement ~~Method. (ii) Except for any~~ Method and the same relative proportion of cash and shares of Common Stock as all other conversions ~~that occur~~ occurring on or after ~~June 1~~October 15, ~~2018 to the close of business on the Business Day immediately preceding the Maturity Date,~~ 2024. If the Company ~~shall use the same~~ elects a Settlement Method for all conversions occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions that occur on different Conversion Days. (iii) If, in respect of any Conversion Date (or the period described in the third immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions occurring on or after ~~June 1~~October 15, ~~2018~~2024, the Company shall deliver notice 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 Business Day immediately preceding June 1~~October 15, ~~2018)~~2024. If the Company does not timely elect a Settlement ~~Method prior to the deadline set forth in the immediately preceding sentence~~Method, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. ~~Such~~ If the Company has timely elected Combination Settlement ~~Notice shall specify~~ in respect of any conversion, but fails to notify converting Holders through the ~~relevant Settlement Method and in the case~~ Trustee of ~~an election of Combination Settlement, the relevant Settlement Notice shall indicate~~ the Specified Dollar Amount per $1,000 principal amount of Notes, the Specified Dollar Amount shall be deemed to be $1,000. (2) Except for any conversions that occur on or after October 15, 2024, the Company shall use the same Settlement Method (including the same relative proportion of cash and shares of Common Stock) for all conversions occurring on the same Conversion Date. Except for any conversions that occur on or after October 15, 2024, the Company shall not have any obligation to use the same Settlement Method with respect to conversions that occur on different Conversion Dates. Prior to October 15, 2024, if the Company elects a Settlement Method, the Company shall deliver notice to converting 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 Conversion Date (or in the case of any conversions for which the relevant Conversion Date occurs on or after October 15, 2024, no later than October 15, 2024). If the Company ~~delivers~~ does not timely elect a Settlement ~~Notice electing~~ Method in respect of a particular Conversion Date, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to that Conversion Date and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion ~~Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice~~Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. If the Company has timely elected Combination Settlement in respect of any such conversion, but fails to notify the Conversion Agent of the Specified Dollar Amount per $1,000 principal amount of Notes, the Specified Dollar Amount per $1,000 principal amount shall be deemed to be $1,000. Notwithstanding anything to the contrary above, if the Company calls any Notes for redemption, then (i) the Company shall specify in the related Redemption Notice the Settlement Method that shall apply to all conversions with a Conversion Date that occurs on or after the date the Company sends such Redemption Notice and before the Business Day immediately before the related Redemption Date and (ii) if the related Redemption Date occurs on or after October 15, 2024, then such Settlement Method must be the same Settlement Method that applies to all conversions with a Conversion Date that occurs on or after October 15, 2024. (iv3) 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 “Conversion Settlement Amount”) shall be computed by the Company as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate ~~in effect~~ on the Conversion ~~Date~~Date (plus cash in lieu of any fractional share of Common Stock issuable upon conversion); (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 40 consecutive VWAP Trading Days during the ~~related~~ applicable Observation Period; and (C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or and deliver, ~~as the case may be~~if applicable, to the ~~Converting~~ converting Holder in respect of each $1,000 principal amount of Notes being ~~converted,~~ converted a Conversion Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 40 consecutive VWAP Trading Days during the ~~related~~ applicable 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. (v4) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last ~~day~~ VWAP Trading Day of the applicable 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~~share, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, ~~and~~ 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. (b) ~~Subject to Section 14.02(e), before any Holder of a Note shall be entitled to~~ To convert a Note as set forth above, ~~such Holder shall~~ (i) in the case of a Global Note, the beneficial owner thereof shall comply with the ~~procedures of the Depositary~~ Applicable Procedures for converting a beneficial interest in ~~effect at that time~~ 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~~9.02(g) and pay any transfer or similar taxes required to be paid pursuant to Section 9.02(e), if any (as such, the beneficial owner of such Notes must allow for sufficient time to comply with the Applicable Procedures to exercise the conversion rights) and (ii) in the case of a Physical ~~Note~~ Note, the Holder thereof shall: (1) complete, manually sign and deliver an irrevocable notice or facsimile thereof to the Conversion Agent and to the Trustee, if not the Conversion Agent, as set forth in the Form of Notice of Conversion ~~(or a facsimile thereof)~~ (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, ; (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, ; (3) if required, furnish appropriate endorsements and transfer ~~documents and~~ documents; (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~14.02(h~~9.02(g); and (5) if required, pay any transfer or similar taxes required to be paid pursuant to Section 9.02(e). The ~~Trustee (and, if different, the~~ Conversion ~~Agent)~~ Agent shall notify the Company of any conversion ~~pursuant~~ (i) on the applicable Conversion Date, if (A) in the case of a Global Note, DTC has notified the Conversion Agent of a Holder’s election to convert such Note, or (B) in the case of a Physical Note, the Holder of the Note to be converted has complied with all requirements to convert such Note set forth in this ~~Article 14~~ Section 9.02(b), in either case, at or prior to 5:00 p.m., New York City time, on the Conversion ~~Date for~~ Date, or (ii) as promptly as practicable, but in no event later than the open of business on the day after the applicable Conversion Date, if (A) in the case of a Global Note, DTC notifies the Conversion Agent of such ~~conversion~~election, or (B) in the case of a Physical Note, the Holder of the Note to be converted has complied with all requirements to convert such Note set forth in this Section 9.02(b), in either case, after 5:00 p.m., New York City time, on the Conversion Date. No ~~Notice of Conversion with respect to any~~ Holder may surrender Notes ~~may be delivered by a Holder thereof~~ for conversion if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and ~~has~~ not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~15.03~~10.02 (or, in the case of a Global Note, if such Holder has requested a repurchase of Notes pursuant to Section 10.01 but has not withdrawn such request pursuant to Section 10.02, in each case, in compliance with Applicable Procedures). If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion ~~Obligation~~ Settlement Amount with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. ~~The~~ Subject to Section 9.03(b) and Section 9.07(a), the Company shall pay or deliver, as the case may be, the ~~consideration~~ Conversion Settlement Amount due in respect of the Conversion Obligation on: (1) if the Company elects Physical Settlement, on the ~~third~~ second Business Day immediately following the relevant Conversion Date for any conversion occurring prior to the Regular Record Date immediately preceding the Maturity Date~~, if the Company elects Physical Settlement~~, or on the ~~third~~ Maturity Date, for any conversion occurring on or after the Regular Record Date immediately preceding the Maturity Date; or (2) the second Business Day immediately following the last VWAP Trading Day of the ~~relevant~~ applicable 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 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~~ certificates, or make a book-entry transfer through the Depositary to such Holder or such Holder’s nominee or nominees, for the full number of shares of Common Stock to which such Holder shall be entitled in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, in $1,000 principal amount or an integral multiple thereof, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder of the Notes but, if required by the Company or Trustee, with payment of a sum sufficient to cover any ~~documentary, stamp or similar issue or~~ transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder of the Notes submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on ~~the issue~~ any issuance of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests any such shares of Common Stock to be issued in a name other than ~~the~~ such Holder’s name, in which case ~~the~~ such Holder ~~shall~~ must pay that tax. The ~~Conversion Agent~~ stock transfer agent or the Company, as the case may be, may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than ~~the~~ such Holder’s name until the ~~Trustee~~ Company receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) ~~Except as provided in Section 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~~ custodian for the Depositary or its nominee (if other than the Trustee) at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (hg) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s ~~settlement~~ delivery of the ~~full~~ Conversion ~~Obligation~~ Settlement Amount with respect to any converted Note shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. ~~Upon a conversion of Notes into a combination of cash and 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~~foregoing three sentences, if Notes are converted after the close of business on a Regular Record Date, but prior to the open of business on the immediately following Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date ~~will~~ shall receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so ~~converted~~converted (regardless of whether the converting Holder was a Holder of such Notes on the Regular Record Date); provided that no such payment shall be required (1) for conversions following the close of business on the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date, in respect of Notes converted after close of business on such Regular Record Date and on or prior to the open of business on such Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately ~~succeeding~~ following the corresponding Interest Payment Date, in respect of Notes converted after the close of business on such Regular Record Date and on or prior to the open of business on such Interest Payment Date; or (34) 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~~ For the avoidance of doubt, all Holders of ~~record~~ Notes on the Regular Record Date and any Redemption Date or Fundamental Change Repurchase Date described in the immediately preceding clauses (2) and (3), respectively, immediately preceding the Maturity Date ~~or any Fundamental Change Repurchase Date as described in the immediately preceding sentence~~ shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date regardless of whether ~~their~~ such Holders’ 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 treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) converted, redeemed or the last Trading Day of the relevant Observation Period (if the 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. (j) The 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 on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP on the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of 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.repurchased followin

Appears in 1 contract

Sources: First Supplemental Indenture (INSMED 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 ~~Company~~ 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 ~~the Company’s~~ its election, subject to the immediately succeeding paragraph, as set forth in this Section 14.02. Notwithstanding the immediately preceding paragraph, for any conversions of Notes for which the relevant Conversion Date occurs prior to the date on which the Issuer notifies Holders, the Trustee and the Conversion Agent (if other than the Trustee) that the Hercules Loan and Security Agreement has been repaid in full or is no longer outstanding or that the restriction on payments of cash (other than cash in lieu of any fractional share) thereunder upon conversion of the Notes does not otherwise apply (the “Hercules Notice”), the Issuer shall not be permitted to deliver a Settlement Notice and elect a Settlement Method as described below under Section 14.02(a)(iii), and the Issuer shall be deemed to have elected Physical Settlement in respect of each such conversion of Notes. Following delivery of the Hercules Notice, the settlement provisions set forth in this Section 14.02 shall apply, and the Issuer may elect a Settlement Method subject to the other conditions set forth in this Section 14.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~June 1~~April 15, ~~2018~~ 2020 shall be settled using the same Settlement Method. (ii) ~~Except~~ For conversions for ~~any conversions that occur on or after June 1~~which the relevant Conversion Date occurs prior to April 15, ~~2018 to the close of business on the Business Day immediately preceding the Maturity Date~~2020, the ~~Company~~ Issuer shall use the same Settlement Method for all conversions ~~occurring on~~ with the same Conversion Date, but (subject to the ~~Company~~ second introductory paragraph to this Section 14.02(a) above) the Issuer shall not have any obligation to use the same Settlement Method with respect to conversions ~~that occur on~~ with different Conversion ~~Days~~Dates. (iii) If, in respect of any Conversion Date that occurs on or after the date of delivery of the Hercules Notice (or the period described in the third immediately succeeding set of parentheses, as the case may be), the ~~Company~~ Issuer elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the ~~Company~~Issuer, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions ~~occurring~~ for which the relevant Conversion Date occurs on or after ~~June 1~~April 15, ~~2018~~2020, no later than ~~the close of business on the Business Day immediately preceding June 1~~April 15, ~~2018~~2020). If the ~~Company~~ Issuer does not elect a Settlement Method for any conversions of Notes for which the relevant Conversion Date occurs on or after the date of delivery of the Hercules Notice and prior to the deadline set forth in the immediately preceding sentence, the ~~Company~~ Issuer shall no longer have the right to elect Cash Settlement or Physical Settlement and the ~~Company~~ 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 ~~Company~~ Issuer validly delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation for any conversions of Notes for which the relevant Conversion Date occurs on or after the date of delivery of the Hercules Notice 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 ~~Company~~ Issuer elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the ~~Company~~ 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~~Date (and cash in lieu of any fractional share in accordance with Section 14.02(j)); (B) if the ~~Company~~ Issuer elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the ~~Company~~ 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 50 20 consecutive Trading Days during the related Observation Period; and (C) if the ~~Company~~ Issuer elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the ~~Company~~ 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, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 20 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the ~~Company~~ 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 ~~Company~~ 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 Note evidenced by a Global ~~Note~~Security, 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 (ii) in the case of a ~~Physical~~ Note evidenced by a definitive Security (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the ~~Company~~ 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). The Trustee (~~and,~~ and if different, the Conversion Agent) shall notify the ~~Company~~ 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 ~~delivered~~ surrendered by a Holder thereof if such ~~Holder~~ ▇▇▇▇▇▇ has also delivered a Fundamental Change Repurchase Notice to the ~~Company~~ Issuer 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. The ~~Company~~ Issuer 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~~ Issuer elects (or is deemed to have elected) 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~~Method (except as provided for in Section 14.03(b) or Section 14.07(a)). If any shares of Common Stock are due to converting Holders, the ~~Company~~ 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 ~~Company~~Issuer’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the ~~Company~~ 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 ~~Company~~ 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 ~~Company~~ 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 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 Note evidenced by a Global ~~Note~~Security, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global ~~Note~~ Security as to the reduction in the principal amount represented thereby. The ~~Company~~ 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. The ~~Company~~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 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 ~~Company~~ Issuer has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately ~~succeeding~~ following the corresponding Interest Payment Date; or (3) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date ~~or any Fundamental Change Repurchase Date as described in the immediately preceding sentence~~ shall receive the full interest payment due on the Maturity ~~Date or other applicable Interest Payment~~ Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the ~~Company~~ Issuer elects (or is deemed to have elected) to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the ~~Company~~ Issuer elects (or is deemed to have elected) to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The ~~Company~~ 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 on for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP on for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the ~~Company~~ 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 (Merrimack Pharmaceuticals 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 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 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 Conversion Date occurs~~ occurring on or after ~~June 1~~September 15, ~~2018~~ 2021, shall be settled using the same Settlement Method~~. (ii) Except for any conversions that occur on or after June 1~~. Prior to September 15, ~~2018 to the close of business on the Business Day immediately preceding the Maturity Date~~2021, the Company shall use the same Settlement Method for all conversions occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions that occur on different Conversion ~~Days. (iii) If, in respect of any Conversion Date (or~~ Dates. If the ~~period described in the third immediately succeeding set of parentheses, as the case may be)~~Company elects a Settlement Method, the Company ~~elects~~ shall inform converting Holders in writing, through the Trustee upon its receipt of a written instruction from the Company to ~~deliver a notice~~ send such notification, of the Settlement Method it has selected (the “Settlement Notice”) ~~of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the Trustee, shall deliver such Settlement Notice to converting Holders~~ no later than the close of business on the Trading Day immediately following the ~~relevant~~ related Conversion Date (or, in the case of any conversions occurring on or after ~~June 1~~September 15, ~~2018~~2021, no later than the close of business on the Business Day immediately preceding ~~June 1~~September 15, ~~2018)~~2021. If the Company does not so elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company ~~shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall~~ will be deemed to have elected ~~Combination Settlement in respect of its Conversion Obligation, and~~ the ~~Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant~~ Default Settlement Method (and in such failure to affirmatively elect a Settlement Method will not constitute a Default or an Event of Default). If the ~~case of an election of~~ Company elects Combination Settlement, ~~the relevant Settlement Notice shall indicate~~ but does not concurrently notify converting Holders of the Specified Dollar Amount per $1,000 principal amount of Notes~~. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a~~ , such Specified Dollar Amount ~~per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall~~ will be deemed to be $1,000. (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 If the Company elects ~~to satisfy its Conversion Obligation in respect of such conversion by~~ Physical Settlement, the Company ~~shall~~ will deliver to ~~the~~ converting ~~Holder~~ holdings in respect of each $1,000 principal amount of ~~Notes~~ notes being converted a number of shares of the Company’s Common Stock equal to the Conversion ~~Rate in effect on the Conversion Date~~Rate; (B) if If the Company elects ~~to satisfy its Conversion Obligation in respect of such conversion by~~ Cash Settlement, the Company ~~shall~~ will pay to ~~the~~ converting ~~Holder~~ Holders in respect of each $1,000 principal amount of ~~Notes~~ notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 40 consecutive Trading Days ~~during~~ in the ~~related~~ relevant Observation Period; and (C) if If the Company elects (or is deemed to have elected) ~~to satisfy its Conversion Obligation in respect of such conversion by~~ Combination Settlement, the Company ~~shall~~ will pay or deliver, as the case may be, to ~~the Converting Holder~~ converting Holders in respect of each $1,000 principal amount of Notes being ~~converted,~~ converted a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 40 consecutive Trading Days ~~during~~ in the ~~related~~ relevant Observation Period. (viii) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the applicable Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of ~~delivering~~ any fractional ~~share of Common Stock~~share, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) in writing of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of ~~delivering~~ fractional shares of Common 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 similar taxes, if any, as provided in Sections 13.02(d) or (e), and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer ~~documents~~ documents, (4) if required, pay all transfer or similar taxes, if any, and (45) if required, pay funds equal to interest payable on the next Interest Payment Date ~~to which such Holder is not entitled~~ as set forth in Section ~~14.02(h~~13.02(h). The Trustee (and, if different, the Conversion Agent) shall notify the 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 ~~delivered~~ surrendered by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and ~~has~~ not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~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. ~~The~~ Subject to Sections 13.03 and 13.07, the 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~~Settlement applies, 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, for any Conversion Date on or after March 1, 2022 for which Physical Settlement is applicable, settlement will occur on the Maturity Date. If any shares of Common Stock are due to converting Holders, the 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 Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder ~~but, if required by the Company or Trustee,~~ but with payment of a sum sufficient to cover any ~~documentary, stamp or similar issue or~~ transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common 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 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. The Company’s settlement of the ~~full~~ Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but ~~not including~~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 after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will ~~receive~~ receive, on or 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 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 Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately ~~succeeding~~ following the corresponding Interest Payment Date; or (3) 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 on the Regular Record Date immediately preceding the Maturity Date ~~or any~~ and the Fundamental Change Repurchase Date as described in ~~the immediately preceding sentence shall~~ (1) and (2) of this paragraph will receive the full interest payment due on the Maturity Date or other applicable Interest Payment ~~Date~~ Date, regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects (or is deemed to have elected) to satisfy the related Conversion Obligation by Combination Settlement), as the case may be, subject to Sections 13.04(c) and 13.04(e). Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common 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 on the ~~relevant Conversion Date (~~Last Trading Day of the applicable Observation Period, or, in the case of Physical Settlement~~) or~~ , based on the ~~Daily~~ daily VWAP on the ~~last Trading Day of the~~ relevant ~~Observation Period (in the case of Combination Settlement)~~Conversion Date. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of 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 (Encore Capital Group Inc)

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