Appears in 1 contract

Sources: Indenture (Parsons Corp)

Conversion Procedure; Settlement Upon Conversion. ~~(a) Subject to this Section 14.02, Section 14.03(b~~Except as provided in ‎Section 13.03(b) and ~~Section 14.07(a~~‎Section 13.07(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, ~~to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, solely~~ cash (“Cash Settlement”), shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection ‎(j) of this ‎Section 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(j) of this ~~Section 14.02~~ ‎Section 13.02 (“Combination Settlement”), at ~~its~~ the Company’s election, as ~~set forth in this Section 14.02~~the case may be, as described below. (i) All conversions ~~of Notes called for redemption (or deemed called for redemption pursuant to Section 14.01(b)(v)) for which the relevant Conversion Date occurs~~ occurring during the ~~related~~ Common Conversion Period, during the Maturity Conversion Period or during a Redemption Period, ~~and all conversions for which~~ as the ~~relevant Conversion Date occurs on or after October 1, 2028~~case may be, shall be settled using the same Settlement Method~~. (ii)~~ . Except for any conversions ~~referred to in Section 14.02(a)(i) for which~~ occurring during the ~~relevant~~ Common Conversion ~~Date occurs during~~ Period, the Maturity Conversion Period or a Redemption Period~~, and any conversions for which the relevant Conversion Date occurs on or after October 1, 2028~~, the Company shall use the same Settlement Method for all conversions ~~with~~ occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions ~~with~~ that occur on different Conversion Dates~~. (iii) If, in respect of any Conversion Date (or~~ . If the ~~period described in the fourth immediately succeeding set of parentheses, as the case may be)~~Company elects a Settlement Method, the Company ~~elects to deliver a notice~~ shall notify in writing Holders converting through the Trustee of the Settlement Method it has selected (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company 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~~ related Conversion Date (or, in the case of ~~(x)~~ any 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 (x) during a ~~related~~ Redemption Period, in the relevant Redemption Notice, or (y) ~~any conversions of Notes for which~~ during the ~~relevant~~ Common Conversion ~~Date occurs on or after October 1, 2028~~Period, no later than ~~October~~ March 1, ~~2028). If~~ 2027, or (z) during the ~~Company calls all or any Notes for redemption and the related Redemption Date is on or after October~~ Maturity Conversion Period, no later than March 1, 2028, then the 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 October 1, 20282042). If the Company does not so elect a Settlement Method ~~with respect to a conversion~~ prior to the deadline set forth in the ~~second~~ immediately preceding sentence, ~~then~~ the Company shall no longer have the right to elect a Cash Settlement ~~Method for such conversion~~ or Combination Settlement and the Company shall be deemed to have elected ~~the Default~~ Physical Settlement ~~Method~~ in respect of to its Conversion Obligation. ~~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, such Specified Dollar Amount will be deemed to be $1,000. If At any time on or prior to March 1, 2042, the Company ~~delivers a Settlement Notice~~ may irrevocably elect to ~~Holders (with a written copy to the Trustee and~~ satisfy the Conversion ~~Agent~~ Obligation with respect to any Notes to be converted after the date of such election through any Settlement Method the Company is permitted to elect (~~if other than the Trustee)) electing~~ including Combination Settlement ~~in respect of its Conversion Obligation but does not indicate~~ with a Specified Dollar Amount of $1,000 per $1,000 principal amount of Notes ~~in such Settlement Notice,~~ or with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes ~~shall be deemed~~ at or above a specific amount set forth in the election notice). If the Company irrevocably elects to ~~be $1,000. The Company shall have~~ fix the ~~right, from time to time prior to October 1, 2028, to change the Default~~ Settlement Method to ~~any~~ Combination Settlement ~~Method that~~ with an ability to continue to set the ~~Company is then permitted to elect, by sending notice to the Holders~~ Specified Dollar Amount per $1,000 principal amount of ~~the new Default Settlement Method (and, in such case~~Notes at or above a specific amount, the Company ~~will simultaneously send a copy~~ shall, after the date of such ~~notice to~~ election, inform the ~~Trustee and the Conversion Agent (if other than the Trustee)). In addition, by notice to~~ Holders ~~of the~~ converting their Notes, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to October 1, 2028, at its option, elect to (1) irrevocably fix the Settlement Method or (2) irrevocably eliminate any one or more (but not all) Settlement Methods (including eliminating Combination Settlement Method with a particular of such Specified Dollar Amount ~~or range~~ no later than the relevant deadline for election of ~~Specified Dollar Amounts); provided~~ a Settlement Method, or, if the Company ~~is then otherwise permitted to elect~~ does not timely notify the ~~applicable Settlement Method(s) so irrevocably elected or the Settlement Method(s) remaining after~~ Holders, such ~~irrevocable elimination, as applicable, and provided further, that in no event may the Company elect (whether directly or by eliminating all other Settlement Methods) Combination Settlement with a~~ Specified Dollar Amount ~~that is less than~~ shall be the specific amount set forth in the election notice or, if no specific amount was set forth in the election notice, such Specified Dollar Amount shall be $1,000 per $1,000 principal amount of Notes. If the Company makes such an irrevocable election, then such election will apply to all conversions of Notes with a Conversion Date that is on or after the date the Company sends such notice and the Company shall, if needed, simultaneously change the Default Settlement Method to a Settlement Method that is consistent with such irrevocable election. Notwithstanding the foregoing, no such irrevocable election ~~or change of Default Settlement Method, as applicable,~~ shall affect any Settlement Method theretofore elected (or deemed to be elected) with respect to any Note pursuant to ~~this Section 14.02~~the provisions described above. The Company may make such an election at its sole discretion without the consent of the Holders. Upon making such an election, the Company shall concurrently (A) post such information on its website or otherwise publicly disclose such information and (B) provide written notice to the Trustee and the Conversion Agent (if other than the Trustee) and to the Holders. For the avoidance of doubt, such an irrevocable election, if ~~made~~made by the Company, ~~shall~~ will be effective without the need to amend this Indenture or the Notes, including pursuant to ~~Section 10.01(g~~‎Section 10.01(h). However, the Company may nonetheless choose to execute such an amendment at ~~the Company’s~~ its option. If the Company changes the Default Settlement Method or makes an irrevocable election, as applicable, pursuant to the immediately preceding paragraph, then, promptly, but in any event within two Business Days, the Company shall either post the Default Settlement Method or such irrevocable election, as applicable, on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with, or furnished to, the Commission. (ivii) The ~~cash~~ cash, shares of Common Stock or combination of cash and shares of Common ~~Stock, if any,~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if If the Company elects (or is deemed to ~~satisfy its Conversion Obligation~~ have elected) Physical Settlement, the Company shall deliver to converting Holders in respect of ~~such conversion by~~ each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection ‎(j) of this ‎Section 13.02; (B) If the Company elects Cash Settlement, the Company shall pay to ~~the~~ converting ~~Holder~~ Holders in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 40 consecutive Trading Days ~~during~~ in the ~~related~~ relevant Observation Period; and (BC) if If the Company elects ~~(or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by~~ Combination Settlement, the Company shall pay or deliver, as the case may be, to converting Holders in respect of each $1,000 principal amount of Notes being ~~converted,~~ converted a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 40 consecutive Trading Days ~~during~~ in the ~~related~~ relevant Observation Period, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection ‎(j) of this ‎Section 13.02. (viii) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company ~~as soon as reasonably practicable~~ promptly following the last day of the applicable Observation Period. ~~Following~~ 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), before any Holder of a Note shall 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 as set forth in Section 14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver a medallion-stamped guaranteed irrevocable notice to the Conversion Agent 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 to the Company funds equal to interest payable on the next Interest Payment Date 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 surrendered by a Holder thereof if such ▇▇▇▇▇▇ 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. Subject to any procedures or requirements of the applicable Depositary in the case of any Global Note, if more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 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 second Business Day immediately following the last Trading Day of the relevant Observation Period. If any shares of Common Stock are due to a converting Holder, the Company shall issue and deliver (or otherwise cause to be issued and delivered) to such Holder, or such Holder’s nominee or nominees, the full number of shares of Common Stock to which such Holder shall be entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in Authorized Denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue or delivery of any shares of Common 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 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 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, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided, however, that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record as of the close of business on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date, and the converting Holder shall not be required to make a corresponding payment. (i) The Person in whose name any shares of Common Stock shall be issuable upon conversion shall be treated as a stockholder of record of such shares as of the close of business on the last Trading Day of the relevant Observation 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 VW

Appears in 1 contract

Sources: Indenture (HCI Group, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~14.02~~10.02, Section ~~14.03(b~~10.03(b) and Section ~~14.07(a~~10.07(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, ~~solely~~ cash (“Cash Settlement”), ~~or a combination of cash and~~ shares of Common Stock, ~~together with~~ plus cash, if applicable, in lieu of ~~delivering~~ any fractional share of Common Stock in accordance with subsection (j) of this Section ~~14.02~~ 10.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, plus cash, if applicable, in lieu of any fractional share of Common Stock in accordance with subsection (j) of this Section 10.02 (“Combination Settlement”), at its election, as set forth in this Section ~~14.02~~10.02. (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 Maturity Conversion Period or occurs after the Company’s issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date (the “Redemption Period~~, and all conversions for which the relevant Conversion Date occurs on or after October 1, 2028~~”), shall be settled using the same Settlement Method. (ii) ~~Except for any conversions referred~~ Prior to ~~in Section 14.02(a)(i) for which~~ the ~~relevant~~ Maturity Conversion ~~Date occurs during a Redemption~~ Period, ~~and~~ except for any conversions for which the relevant Conversion Date occurs ~~on or after October 1, 2028~~during the Redemption Period, the Company shall use the same Settlement Method for all conversions ~~with the same~~ occurring on a given Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions ~~with~~ that occur on different Conversion Dates. (iii) If, in respect of any Conversion Date (that occurs other than during the Maturity Conversion Period or any Redemption Period, in respect of any Conversion Date that occurs during the ~~period described~~ Maturity Conversion Period or in ~~the fourth immediately succeeding set~~ respect of ~~parentheses~~any Conversion Date that occurs during any Redemption Period, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of Conversion Dates other than during the Maturity Conversion Period or any Redemption Period, in respect of Conversion Dates that occur during the Maturity Conversion Period or in respect of Conversion Dates that occur during any such ~~Conversion Date (or such period~~Redemption Period, as the case may be), the ~~Company shall deliver such Settlement Notice in writing to converting Holders (with a written copy to~~ Company, through the Trustee and the Conversion Agent (if other than the Trustee), shall deliver such Settlement Notice to converting Holders (x) in the case of Conversion Dates occurring during the Maturity Conversion Period, no later than the close of business on the 25th Scheduled Trading Day immediately ~~following~~ preceding the ~~relevant Conversion Date~~ Maturity Date, (~~or,~~ y) in the case of ~~(x)~~ Conversion Dates occurring during any ~~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 a related~~ Redemption Period, in the relevant Redemption ~~Notice, or~~ Notice and (yz) ~~any conversions of Notes for which the relevant Conversion Date occurs on or after October 1, 2028~~in all other cases, no later than ~~October 1, 2028). If~~ the ~~Company calls all or any Notes for redemption and~~ close of business on the second Business Day immediately following the related ~~Redemption Date is on or after October 1, 2028, then the 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 October 1, 2028~~Date. If the Company does not elect a Settlement Method ~~with respect to a conversion~~ prior to the relevant deadline set forth in the ~~second~~ immediately preceding sentence, ~~then~~ the Company shall no longer have the right to elect a Cash Settlement ~~Method for such conversion~~ or Combination Settlement and the Company shall be deemed to have elected ~~the Default~~ Physical Settlement ~~Method~~ in respect of its Conversion Obligation. ~~Such~~ Any Settlement Notice shall specify the relevant Settlement Method ~~and~~ 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 (with a written copy to the Trustee and the Conversion Agent (if other than the Trustee))~~ 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 shall have the right, from time to time prior to October 1, 2028, to change the Default Settlement Method to any Settlement Method that the Company is then permitted to elect, by sending notice to the Holders of the new Default Settlement Method (and, in such case, the Company will simultaneously send a copy of such notice to the Trustee and the Conversion Agent (if other than the Trustee)). In addition, by notice to Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to October 1, 2028, at its option, elect to (1) irrevocably fix the Settlement Method or (2) irrevocably eliminate any one or more (but not all) Settlement Methods (including eliminating Combination Settlement Method with a particular Specified Dollar Amount or range of Specified Dollar Amounts); provided the Company is then otherwise permitted to elect the applicable Settlement Method(s) so irrevocably elected or the Settlement Method(s) remaining after such irrevocable elimination, as applicable, and provided further, that in no event may the Company elect (whether directly or by eliminating all other Settlement Methods) Combination Settlement with a Specified Dollar Amount that is less than $1,000 per $1,000 principal amount of Notes. If the Company makes such an irrevocable election, then such election will apply to all conversions of Notes with a Conversion Date that is on or after the date the Company sends such notice and the Company shall, if needed, simultaneously change the Default Settlement Method to a Settlement Method that is consistent with such irrevocable election. Notwithstanding the foregoing, no such irrevocable election or change of Default Settlement Method, as applicable, 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 changes the Default Settlement Method or makes an irrevocable election, as applicable, pursuant to the immediately preceding paragraph, then, promptly, but in any event within two Business Days, the Company shall either post the Default Settlement Method or such irrevocable election, as applicable, on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with, or furnished to, the Commission. (iv) The ~~cash~~ cash, shares of Common Stock or combination of cash and shares of Common ~~Stock, if any, in respect of~~ Stock due upon 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 sum of the Daily Conversion Rate Fractions for each of the 20 consecutive Trading Days during the related Conversion Period; (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~~ Conversion Period; and (BC) if the Company elects ~~(or is deemed to have elected)~~ to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being ~~converted,~~ converted a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 20 consecutive Trading Days during the related ~~Observation~~ Conversion Period. (v) The sum of the Daily Conversion Rate Fractions (if applicable), the Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company ~~as soon as reasonably practicable~~ promptly following the last ~~day~~ Trading Day of the ~~Observation~~ Conversion Period. ~~Following~~ Promptly after such determination of the sum of the Daily Conversion Rate Fractions, the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and (if applicable) the amount of cash payable in lieu of ~~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 sum of the Daily Conversion Rate Fractions, the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and (if applicable) the amount of cash payable in lieu of ~~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~~10.02(e), before any 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 ~~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~~10.02(h) and (ii) in the case of a ~~Physical~~ Note evidenced by an Individual Security (1) complete, manually sign and deliver ~~a medallion-stamped guaranteed~~ 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 ~~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~~10.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 10 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such ~~▇▇▇▇▇▇~~ Holder has also delivered a Repurchase Notice or Fundamental Change Repurchase Exercise Notice to the Company in respect of such Notes and ~~has~~ not validly withdrawn such Repurchase Notice or Fundamental Change Repurchase Exercise Notice in accordance with Section ~~15.03~~11.03. ~~Subject to any procedures or requirements of the applicable Depositary in the case of any Global Note, if~~ If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. ~~Except as set forth in~~ Subject to Section ~~14.03(b~~10.03(b) and the last sentence of this Section ~~14.07(a~~10.02(c), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the ~~second~~ third Business Day immediately following the last Trading Day of the relevant ~~Observation~~ Conversion Period. If any shares of Common Stock are due to a converting ~~Holder~~Holders, the Company shall issue ~~and deliver (~~or ~~otherwise~~ cause to be ~~issued~~ issued, and ~~delivered)~~ 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 book-entry format through the Depositary,~~ entitled in satisfaction of the Company’s Conversion Obligation. Notwithstanding the foregoing, if, prior to the Conversion Date for any Notes surrendered for conversion, the Common Stock has been replaced by Reference Property that consists solely of cash pursuant to the provisions described under Section 10.07(a), the Company shall deliver the consideration due upon conversion on the third Trading Day immediately following the relevant Conversion Date (in which case the consideration due upon conversion shall be determined based on a Daily Conversion Rate Fraction calculated assuming that the Daily VWAP for each Trading Day in the applicable Conversion Period were equal to the per share amount of cash received by holders of the Common Stock in the relevant reclassification, recapitalization, change, consolidation, merger, binding share exchange, sale, assignment, conveyance, transfer, lease or other disposition). (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 ~~Company~~ Conversion Agent 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 ~~Company~~ Trustee receives a sum 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~~10.04, 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 1410. (g) Upon the conversion of an interest in a Note evidenced by a Global ~~Note~~Security, the Trustee, or the Security Custodian at 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 cash payment for accrued and unpaid interest, if any, except as set forth below. The Company shall not adjust the Base Conversion Rate to account for accrued and unpaid interest, except that the Company shall pay on the Maturity Date accrued and unpaid interest to Holders at the close of business on the Regular Record Date immediately preceding the Maturity Date regardless of whether such Holders convert their 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,~~ Holders of ~~such~~ Notes as of the close of business on ~~such~~ any Regular Record Date will receive the full amount 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 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~~ next Interest Payment Date must be accompanied by ~~funds~~ payment of an amount equal to the ~~amount of~~ interest that will be payable on the Notes so converted; provided, however, that no such payment ~~shall~~ need be ~~required~~ made (1) ~~for conversions following~~ if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date ~~immediately preceding~~ and on or prior to the ~~Maturity~~ corresponding Interest Payment 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 with respect to any Notes surrendered for conversion following the ~~Company has specified a Fundamental Change Repurchase Date that is after a~~ Regular Record Date ~~and on or prior~~ immediately preceding October 15, 2019; (4) with respect to ~~the Business Day immediately~~ any Notes surrendered for conversion following the ~~corresponding Interest Payment~~ Regular Record Date immediately preceding the Maturity Date; or (45) 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 as of the close of business on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date 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 ~~shall be issuable~~ delivered upon conversion is registered shall be treated as a stockholder of record ~~of such shares~~ as of the close of business on the last Trading Day of the ~~relevant Observation~~ related Conversion 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 VWVWAP for the Last Trading Day of the relevant Conversion Period. For each Note surrendered for conversion, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Conversion Rate Fractions, the aggregate Daily Settlement Amounts or the aggregate Daily Conversion Values, as the case may be, for each of the 20 Trading Days during the relevant Conversion Period and any fractional shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Sources: First Supplemental Indenture (Stillwater Mining Co /De/)

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, ~~solely~~ cash (“Cash Settlement”), shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection ‎(j) of this ‎Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j‎(j) of this ~~Section~~ ‎Section 14.02 (“Combination Settlement”), at its election, as set forth in this ~~Section~~ ‎Section 14.02. (i) All conversions ~~of Notes called for redemption~~ occurring (~~or deemed called for redemption pursuant to Section 14.01(b)(v)~~x) ~~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 ~~October 1~~March 15, ~~2028~~2030, (y) during a Redemption Period or (z) during the period after delivery to the Holders of a Certain Distributions Notification until the related Certain Distributions Conversion Period End Date shall be settled using the same Settlement Method. (ii) Except for any conversions ~~referred to in Section 14.02(a)(i)~~ for which the relevant Conversion Date occurs (x) on or after March 15, 2030, (y) during a Redemption ~~Period, and any conversions for which~~ Period or (z) during the ~~relevant~~ period after delivery to the Holders of a Certain Distributions Notification until the related Certain Distributions Conversion ~~Date occurs on or after October 1, 2028~~Period End Date, the Company shall use the same Settlement Method for all conversions ~~with~~ occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions ~~with~~ that occur on different Conversion Dates. (iii) (A) If, in respect of any Conversion Date (or one of the ~~period~~ periods described in the fourth immediately succeeding set of parentheses, as the case may be), the Company elects to a Settlement Method, the Company shall deliver a written notice (the “Settlement Notice”) of the ~~relevant~~ Settlement Method so elected in respect of such Conversion Date (or such period, as the case may be~~), the Company shall deliver such Settlement Notice in writing~~ ) to converting ~~Holders (with a written copy to~~ Holders, the Trustee and the Conversion Agent (if other than the Trustee)) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions occurring (x) ~~any 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 a ~~related~~ Redemption Period, in ~~the relevant~~ such Redemption Notice, or (y) ~~any conversions~~ during the period after delivery to the Holders of ~~Notes for which~~ a Certain Distributions Notification until the ~~relevant~~ related Certain Distributions Conversion Period End Date ~~occurs~~ in such Certain Distributions Notification or (z) on or after ~~October 1~~March 15, ~~2028~~2030, no later than ~~October 1~~the close of business on the Business Day immediately preceding March 15, ~~2028). If~~ 2030) (in each case, the ~~Company calls all or any Notes for redemption and the related Redemption Date is on or after October 1, 2028, then the~~ “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 October 1, 2028Election Deadline”). If the Company does not timely elect a Settlement Method with respect to a any conversion prior to the ~~deadline set forth in the second immediately preceding sentence~~Settlement Method Election Deadline, then ~~the Company shall no longer have the right to elect a Settlement Method for such conversion and~~ the Company shall be deemed to have elected the Default Settlement Method in with respect ~~of its Conversion Obligation~~to 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 (with a written copy to the Trustee and the Conversion Agent (if other than the Trustee))~~ electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount then the Specified Dollar Amount for such conversion will be deemed to be $1,000 per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. The Company shall have the right, from time to time prior to October 1, 2028, to change the Default Settlement Method to any Settlement Method that the Company is then permitted to elect, by sending notice to the Holders of the new Default Settlement Method (and, in such case, the Company will simultaneously send a copy of such notice to the Trustee and the Conversion Agent (if other than the Trustee)). In addition, by notice to Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to October 1, 2028, at its option, elect to (1) irrevocably fix the Settlement Method or (2) irrevocably eliminate any one or more (but not all) Settlement Methods (including eliminating Combination Settlement Method with a particular Specified Dollar Amount or range of Specified Dollar Amounts); provided the Company is then otherwise permitted to elect the applicable Settlement Method(s) so irrevocably elected or the Settlement Method(s) remaining after such irrevocable elimination, as applicable, and provided further, that in no event may the Company elect (whether directly or by eliminating all other Settlement Methods) Combination Settlement with a Specified Dollar Amount that is less than $1,000 per $1,000 principal amount of Notes. If the Company makes such an irrevocable election, then such election will apply to all conversions of Notes with a Conversion Date that is on or after the date the Company sends such notice and the Company shall, if needed, simultaneously change the Default Settlement Method to a Settlement Method that is consistent with such irrevocable election. Notwithstanding the foregoing, no such irrevocable election or change of Default Settlement Method, as applicable, 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 changes the Default~~ failure to timely elect a Settlement Method or makes an irrevocable election, as applicable, pursuant to the immediately preceding paragraph, then, promptly, but in any event within two Business Days, the Company shall either post the Default Settlement Method or such irrevocable election, as applicable, on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with, or furnished to, the Commission. (iv) The cash or combination of cash and shares of Common Stock, if any, 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 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 (B) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company as soon as reasonably practicable following the last day of the Observation Period. 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 as set forth in Section 14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver a medallion-stamped guaranteed irrevocable notice to the Conversion Agent 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 to the Company funds equal to interest payable on the next Interest Payment Date 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 surrendered by a Holder thereof if such ▇▇▇▇▇▇ 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. Subject to any procedures or requirements of specify 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 surrenderedSpecified Dollar Amount will not constitute a default under this Indenture. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the last Trading Day of the relevant Observation Period. If any shares of Common Stock are due to a converting Holder, the Company shall issue and deliver (or otherwise cause to be issued and delivered) to such Holder, or such Holder’s nominee or nominees, the full number of shares of Common Stock to which such Holder shall be entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in Authorized Denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue or delivery of any shares of Common 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 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 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, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided, however, that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record as of the close of business on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date, and the converting Holder shall not be required to make a corresponding payment. (i) The Person in whose name any shares of Common Stock shall be issuable upon conversion shall be treated as a stockholder of record of such shares as of the close of business on the last Trading Day of the relevant Observation 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 VW

Appears in 1 contract

Sources: Indenture (Esperion 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 $US$1,000 principal amount of Notes being converted, ~~solely~~ cash (“Cash Settlement”), ADSs together with cash, if applicable, in lieu of delivering any fractional ADSs (“Fractional ADSs”) (in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”)) or a combination of cash and ~~shares of Common Stock~~ADSs, together with cash, if applicable, in lieu of delivering any ~~fractional share of Common Stock~~ Fractional ADS in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02. (i) All conversions ~~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~~ after the Company’s issuance of a Redemption Notice with respect to the Notes and prior to the close of business on the second Scheduled Trading Day prior to the related Redemption ~~Period~~Date, as applicable, and all conversions for which the relevant Conversion Date occurs on or after ~~October 1, 2028, shall~~ the 30th Scheduled Trading Day immediately preceding the Maturity Date will be settled using the same Settlement Method. (ii) Except for any conversions ~~referred to in Section 14.02(a)(i)~~ for which the relevant Conversion Date occurs ~~during~~ after the Company’s issuance of a Redemption ~~Period~~Notice with respect to the Notes but prior to the close of business on the second Scheduled Trading Day prior to the related Redemption Date, as applicable, and any conversions for which the relevant Conversion Date occurs on or after ~~October 1, 2028~~the 30th Scheduled Trading Day immediately preceding the Maturity Date, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion Date (~~or the period described~~ or, in the ~~fourth~~ case of any conversions for which the relevant Conversion Date occurs after the date of issuance of a Redemption Notice with respect to the Notes and prior to the close of business on the second Scheduled Trading Day prior to the related Redemption Date, as applicable, in such Redemption Notice or on or after the 30th Scheduled Trading Day immediately ~~succeeding set of parentheses~~preceding the Maturity Date, no later than the 31st Schedule Trading Day immediately preceding the Maturity Date, as the case may be), the Company elects to a Settlement Method, the Company shall deliver a written notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be~~), the Company shall deliver such Settlement Notice in writing~~ ) to converting ~~Holders (with a written copy to~~ Holders, the Trustee and the Conversion Agent (if other than the Trustee)) no later than the close of business on the second Trading Day immediately following the relevant Conversion Date (or, in the case of ~~(x)~~ any 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~~ after the date of issuance of a Redemption Notice with respect to the Notes and prior to the close of business on the second Scheduled Trading Day prior to the related Redemption ~~Period~~Date, as applicable, in ~~the relevant~~ such Redemption ~~Notice,~~ Notice or ~~(y) any conversions of Notes for which the relevant Conversion Date occurs~~ on or after ~~October 1, 2028~~the 30th Scheduled Trading Day immediately preceding the Maturity Date, no later than ~~October 1~~the 31st Scheduled Trading Day immediately preceding the Maturity Date) (in each case, ~~2028). If~~ the ~~Company calls all or any Notes for redemption and the related Redemption Date is on or after October 1, 2028, then the~~ “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 October 1, 2028Election Deadline”). If the Company does not elect a Settlement Method ~~with respect to a conversion~~ prior to the deadline set forth in the ~~second~~ immediately preceding sentence, ~~then~~ the Company shall no longer have the right to elect a Cash Settlement ~~Method for such conversion~~ or Physical Settlement and the Company shall be deemed to have elected ~~the Default~~ Physical Settlement ~~Method~~ in respect of its Conversion ~~Obligation~~Obligation (such settlement method, the “Default Settlement Method” initially elected by the Company). Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $US$1,000 principal amount of Notes. If the Company delivers a Settlement Notice ~~to Holders (with a written copy to the Trustee and the Conversion Agent (if other than the Trustee))~~ electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $US$1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $US$1,000 principal amount of Notes shall be deemed to be $US$1,000. . (iv) The Company ~~shall have~~ may, by written notice to Holders, the ~~right~~Trustee and the Conversion Agent (if other than the Trustee), ~~from time to time~~ prior to ~~October 1~~the 30th Scheduled Trading Day immediately preceding the Maturity Date, ~~2028, to~~ change the Default Settlement Method or elect to irrevocably fix the Settlement Method to any Settlement Method that the Company is then permitted to elect, by sending notice to the Holders of the new Default Settlement Method (and, in such case, the Company will simultaneously send a copy of such notice to the Trustee and the Conversion Agent (if other than the Trustee)). In addition, by notice to Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to October 1, 2028, at its option, elect to (1) irrevocably fix the Settlement Method or (2) irrevocably eliminate any one or more (but not all) Settlement Methods (including eliminating Combination Settlement Method with a particular Specified Dollar Amount or range of Specified Dollar Amounts); provided the Company is then otherwise permitted to elect the applicable Settlement Method(s) so irrevocably elected or the Settlement Method(s) remaining after such irrevocable elimination, as applicable, and provided further, that in no event may the Company elect (whether directly or by eliminating all other Settlement Methods) Combination Settlement with a Specified Dollar Amount ~~that is less than $1,000~~ per $1,000 principal amount of ~~Notes. If~~ Notes of $1,000 or with an ability to continue to set the ~~Company makes such an irrevocable election, then~~ Specified Dollar Amount per $1,000 principal amount of Notes at or above any specific amount set forth in such election notice, that will apply to all Note conversions ~~of Notes~~ with a Conversion Date that is on or after the date the Company sends such ~~notice and~~ notice. If the Company changes the Default Settlement Method or elects to irrevocably fix the Settlement Method, in either case, to Combination Settlement with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above a specified amount, the Company shall, after the date of such change or election, as the case may be, inform Holders converting their Notes, the Trustee and the Conversion Agent (if ~~needed~~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, ~~simultaneously~~ or, if the Company does not timely inform the Holders, the Trustee and the Conversion Agent of the Specified Dollar Amount, such Specified Dollar Amount shall be the specific amount set forth in the change or election notice or, if no specific amount was set forth in the change or election notice, such Specified Dollar Amount shall be deemed to be $1,000 per $1,000 principal amount of Notes. If the Company changes the Default Settlement Method ~~to a~~ or irrevocably fixes the Settlement Method, then the Company shall concurrently either post the Default Settlement Method or fixed Settlement Method, as applicable, on the Company’s website or disclose the same in a current report on Form 6-K (or any successor form) that is ~~consistent~~ filed with ~~such irrevocable election~~the Commission. Notwithstanding the foregoing, no such change in the Default Settlement Method or irrevocable election ~~or change of Default Settlement Method, as applicable, shall~~ will affect any Settlement Method theretofore elected (or deemed to be elected) with respect to any ~~Note~~ Conversion Date pursuant to this Section 14.02. For the avoidance of doubt, such ~~an irrevocable election~~change or election (as the case may be), if made, ~~shall~~ will be effective without the need to amend this Indenture or the Notes, including pursuant to Section ~~10.01(g~~10.02(a). However, the Company may nonetheless choose to execute such an amendment at the Company’s option. ~~If the Company changes the Default Settlement Method or makes an irrevocable election, as applicable, pursuant~~ (v) Subject to ~~the immediately preceding paragraph, then, promptly, but in any event within two Business Days~~Section 14.03 and Section 14.04, the ~~Company shall either post the Default Settlement Method~~ cash, ADSs or ~~such irrevocable election, as applicable, on its website or disclose the same in~~ a ~~current report on Form 8-K (or any successor form) that is filed with, or furnished to, the Commission. (iv) The cash or~~ combination of cash and ~~shares of Common Stock~~ADSs, ~~if any~~as applicable, 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 US$1,000 principal amount of Notes being converted a number of ADSs equal to the Conversion Rate in effect on the Conversion Date for such 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 $US$1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 20 consecutive Trading Days during the related Observation Period; and (BC) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each $US$1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 20 consecutive Trading Days during the related Observation Period. (vvi) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company ~~as soon as reasonably practicable~~ promptly following the last day of the Observation Period. ~~Following~~ Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any ~~fractional share of Common Stock~~Fractional ADS, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) in writing of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering ~~fractional shares of Common Stock~~Fractional ADSs. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (vii) The Company covenants that it has reserved and will keep available at all times a number of Ordinary Shares corresponding to the maximum number of ADSs deliverable upon conversion of the Notes, plus any additional ADSs deliverable pursuant to Section 14.03, assuming Physical Settlement applies to each conversion (such ADSs, “Make-Whole ADS”). The Company also covenants that it will obtain approval to list (i) the maximum number of ADSs deliverable upon conversion of the Notes (assuming Physical Settlement applies to each conversion and excluding any Make-Whole ADSs) on the New York Stock Exchange, (ii) the Ordinary Shares represented by such maximum number of ADSs on the Hong Kong Stock Exchange and (iii) the same number of Ordinary Shares on the Singapore Exchange (in each case, where applicable, subject to official notice of issuance upon conversion of the notes). Prior to the scheduled delivery of any Make- Whole ADSs upon conversion of the Notes, the Company will obtain approval to list (i) such Make-Whole ADSs on the New York Stock Exchange, (ii) the Ordinary Shares represented by such Make-whole ADSs on the Hong Kong Stock Exchange and (iii) the Ordinary Shares represented by such Make-whole ADSs on the Singapore Exchange (in each case, where applicable, subject to official notice of issuance upon conversion of the notes). (b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, (1) subject to the immediately succeeding Clause (3), comply with the procedures of the Depositary in effect at that time ~~and~~for converting a beneficial interest in a Global Note, and the procedures agreed between the Company and the ADS Depositary with respect to any ADSs issued upon conversion of the Notes prior to the Resale Restriction Termination Date, (2) if required, pay ~~to the Company~~ funds equal to ~~interest~~ interest, if any, payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h), and (3) prior to the Resale Restriction Termination Date, complete, manually sign and deliver a duly completed irrevocable notice to the Conversion Agent, the Company and the ADS Depositary as set forth in the Form of Notice of Conversion (or a facsimile thereof) (a “Notice of Conversion”) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver a ~~medallion-stamped guaranteed~~ duly completed irrevocable ~~notice~~ Notice of Conversion to the Conversion Agent ~~as set forth in the Form of Notice of Conversion (a “Notice of Conversion”)~~ at the specified office of the Conversion ~~Agent~~ Agent, the Company and the ADS Depositary, and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ~~shares of Common Stock~~ ADSs to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the specified office of the ~~Conversion Agent~~Trustee, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay ~~to the Company~~ funds equal to ~~interest~~ interest, if any, payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion ~~Date~~ Date, or promptly following instructions for such conversion. No Notice of Conversion with respect to any Notes may be delivered and no Notes may be surrendered by a Holder for conversion thereof if such ~~▇▇▇▇▇▇~~ Holder has also delivered a Repurchase Notice or Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Repurchase Notice or Fundamental Change Repurchase ~~Notice~~ Notice, as the case may be, in accordance with Section 15.03. ~~Subject~~ The delivery of the ADSs or any cash in lieu of Fractional ADSs by the ADS Depositary to Holders upon conversion of their Notes or their designated transferees will be governed by the terms of the Unrestricted Deposit Agreement or the Restricted Deposit Agreement, as applicable, the Procedures Letter and by other procedures agreed between the Company and the ADS Depositary with respect to any ~~procedures or requirements~~ ADSs issued upon conversion of the ~~applicable~~ Notes. By converting a beneficial interest in a Global Note into ADSs, the Holder is deemed to represent to the Company and to the ADS Depositary that such Holder is not an “affiliate” (as defined in Rule 144) of the ~~case~~ Company and has not been an “affiliate” of ~~any Global Note, if~~ the Company during the three months immediately preceding the Conversion Date. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the third Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the third Business Day immediately following the last Trading Day of the relevant Observation Period, in the case of any other Settlement Method; provided that in respect of (x) all conversions for which the relevant Conversion Date occurs after the issuance of a Redemption Notice by the Company with respect to the Notes and prior to the close of business on the second Scheduled Trading Day prior to the related Redemption Date (as the case may be), (y) all conversions for which the relevant Conversion Date occurs on or after the 30th Scheduled Trading Days immediately preceding the Maturity Date, if the Company elect Combination Settlement or Cash Settlement, the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the last Trading Day of the relevant Observation ~~Period~~Period and (z) all conversions for which the relevant Conversion Date occurs on or after the Interest Payment Date immediately preceding the Maturity Date, if the Company elects Physical Settlement, the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the Maturity Date, provided further that, solely for the purposes of this Section 14.02(c), the term “Business Day” shall also include days on which banking institutions in the Cayman Islands are authorized or obligated by law or executive order to close. If any ~~shares of Common Stock~~ ADSs are due to a converting Holder, subject to the ~~Company shall issue and deliver (or otherwise cause to be issued and delivered) to such Holder, or such Holder’s nominee or nominees~~Unrestricted Deposit Agreement, the full number of shares of Common Stock to which such Holder shall be entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute Restricted Deposit Agreement and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in Authorized Denominations in an aggregate principal amount equal to the unconverted portion of the surrendered NoteProcedures Letter, ~~without payment of any service charge by the converting Holder but~~as applicable, 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 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 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, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided, however, that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or occurs prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record as of the close of business on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date, and the converting Holder shall not be required to make a corresponding payment. (i) The Person in whose name any shares of Common Stock shall be issuable upon conversion shall be treated as a stockholder of record of such shares as of the close of business on the last Trading Day of the relevant Observation 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 VWRestr

Appears in 1 contract

Sources: Indenture (NIO 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~~ 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, ~~solely~~ cash (“Cash Settlement”), shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02. (i) All conversions ~~of Notes called for redemption (or deemed called for redemption pursuant to Section 14.01(b)(v))~~ for which the relevant Conversion ~~Date~~ Dates occurs ~~during the related Redemption Period, and all conversions for which the relevant Conversion Date occurs~~ (x) on or after ~~October~~ March 1, ~~2028,~~ 2029 shall be settled using the same Settlement Method or (y) during a Redemption Period shall be settled using the same Settlement Method. (ii) Except for any conversions ~~referred to in Section 14.02(a)(i)~~ for which the relevant Conversion Date occurs during a Redemption ~~Period,~~ Period and any conversions for which the relevant Conversion Date occurs on or after ~~October~~ March 1, ~~2028~~2029, the Company shall use the same Settlement Method for all conversions ~~with~~ occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions ~~with~~ that occur on different Conversion Dates. (iii) If, in respect of any Conversion Date (or ~~the period described~~ in the ~~fourth immediately succeeding set~~ case of ~~parentheses~~any conversions occurring (x) during a Redemption Period or (y) on or after March 1, ~~as the case may be~~2029), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company shall deliver such Settlement Notice ~~in writing~~ to converting ~~Holders (with a written copy to~~ Holders, the Trustee and the Conversion Agent (if other than the Trustee)) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions occurring (x) ~~any 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 a ~~related~~ Redemption Period, in ~~the relevant~~ such Redemption Notice, or (y) ~~any conversions of Notes for which the relevant Conversion Date occurs~~ on or after ~~October~~ March 1, ~~2028~~2029, no later than ~~October~~ the close of business on the Trading Day immediately preceding March 1, ~~2028). If~~ 2029) (in each case, the ~~Company calls all or any Notes for redemption and the related Redemption Date is on or after October 1, 2028, then the~~ “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 October 1, 2028Election Deadline”). If the Company does not timely elect a Settlement Method ~~with respect to a conversion~~ prior to the deadline set forth in the ~~second~~ immediately preceding sentence, ~~then~~ the Company shall no longer have the right to elect a Cash Settlement ~~Method~~ or Physical Settlement for such conversion or during such period and the Company shall be deemed to have elected ~~the Default~~ Combination Settlement ~~Method~~ in respect of its Conversion Obligation, and the Specified Dollar Amount per $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 ~~to Holders (with a written copy to the Trustee and the Conversion Agent (if other than the Trustee))~~ 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 shall have the right, from time to time prior to October 1, 2028, to change the Default Settlement Method to any Settlement Method that the Company is then permitted to elect, by sending~~ By notice to the Holders of the new Default Settlement Method (and, in such case, the Company will simultaneously send a copy of such notice to the Trustee and the Conversion Agent (if other than the Trustee)). In addition, by notice to Holders of the NotesHolders, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to ~~October~~ March 1, ~~2028~~2029, at its option, irrevocably elect to ~~(1) irrevocably fix~~ satisfy its Conversion Obligation with respect to the Settlement Method or (2) irrevocably eliminate any one or more (but not all) Settlement Methods (including eliminating Combination Settlement Method with a particular Specified Dollar Amount or range of Specified Dollar Amounts); provided the Company is then otherwise permitted to elect the applicable Settlement Method(s) so irrevocably elected or the Settlement Method(s) remaining after such irrevocable elimination, as applicable, and provided further, that in no event may the Company elect (whether directly or by eliminating all other Settlement Methods) Notes through Combination Settlement with a Specified Dollar Amount ~~that~~ 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 ~~less~~ not otherwise deemed to apply. If the Company irrevocably elects Combination Settlement with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above a specific amount, the Company shall, after the date of such election, inform Holders converting their Notes, the Trustee and the Conversion Agent (if other than the Trustee) 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 shall be $1,000 per $1,000 principal amount of Notes. If Concurrently with providing notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) of its irrevocable election to satisfy its Conversion Obligation through Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of at least $1,000, the Company ~~makes such an~~ shall either post its irrevocable ~~election, then such~~ election ~~will~~ on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission. The irrevocable election shall apply to all conversions of Notes ~~with a~~ on Conversion ~~Date~~ Dates occurring subsequent to delivery of such notice; provided, however, that is on or after the date the Company sends such notice and the Company shall, if needed, simultaneously change the Default Settlement Method to a Settlement Method that is consistent with such irrevocable election. Notwithstanding the foregoing, no such ~~irrevocable~~ election ~~or change of Default Settlement Method, as applicable, shall~~ will affect any Settlement Method theretofore elected (or deemed to be elected) with respect to any ~~Note pursuant to this Section 14.02~~Note. For the avoidance of doubt, such an irrevocable election, if made, shall be effective without the need to amend this Indenture or the Notes, including pursuant to Section ~~10.01(g~~10.01(k). However, the Company may nonetheless choose to execute such an amendment at ~~the Company’s~~ its option. If the Company changes the Default Settlement Method or makes an irrevocable election, as applicable, pursuant to the immediately preceding paragraph, then, promptly, but in any event within two Business Days, the Company shall either post the Default Settlement Method or such irrevocable election, as applicable, on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with, or furnished to, the Commission. (iv) The ~~cash~~ cash, shares of Common Stock or combination of cash and shares of Common ~~Stock, if any,~~ 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 (BC) 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 ~~as soon as reasonably practicable~~ promptly following the last day of the Observation Period. ~~Following~~ 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 applicable 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 (1) complete, manually sign and deliver ~~a medallion-stamped guaranteed~~ an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable 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 ~~to the Company~~ 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 surrendered for conversion by a Holder thereof if such ▇▇▇▇▇▇ 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. ~~Subject to any procedures or requirements of the applicable Depositary in the case of any Global Note, if~~ If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the second Business Day immediately following the last Trading Day of the relevant Observation Period, in the case of any other Settlement Method. If any shares of Common Stock are due to a converting ~~Holder~~Holders, the Company shall issue ~~and deliver (~~or ~~otherwise~~ cause to be ~~issued~~ issued, and ~~delivered)~~ 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 book-entry format through the Depositary,~~ entitled in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in ~~Authorized Denominations~~ authorized denominations in an aggregate principal amount 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 ~~Company~~ Conversion Agent 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 ~~Company~~ Trustee receives a sum 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. . (i) Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; ~~provided, however,~~ provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a ~~Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a~~ Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately ~~following~~ succeeding the corresponding Interest Payment Date; (3) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading day immediately succeeding the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record ~~as of the close of business~~ on the Regular Record Date immediately preceding the Maturity Date, any Fundamental Change Repurchase Date or Redemption Date, in each case, as described above, shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been ~~converted~~ converted, redeemed and/or repurchased, as applicable, following such Regular Record Date~~, and the converting Holder shall not be required to make a corresponding payment~~. (ij) The Person in whose name the certificate for any shares of Common Stock ~~shall be issuable~~ delivered 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~~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 VWsur

Appears in 1 contract

Sources: Indenture (Cutera 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, ~~solely~~ cash (“Cash Settlement”), shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection ‎(j) of this ‎Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j‎(j) of this ~~Section~~ ‎Section 14.02 (“Combination Settlement”), at 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~~ after the Company’s issuance of a Notice of Redemption with respect to the Notes and prior to the related Redemption ~~Period~~Date shall be settled using the same Settlement Method, and all conversions for which the relevant Conversion Date occurs on or after ~~October 1~~December 15, ~~2028~~2026, shall be settled using the same Settlement Method. (ii) Except for any conversions ~~referred to in Section 14.02(a)(i)~~ for which the relevant Conversion Date occurs ~~during~~ after the Company’s issuance of a Notice of Redemption ~~Period~~with respect to the Notes but prior to the related Redemption Date, and any conversions for which the relevant Conversion Date occurs on or after ~~October 1~~December 15, ~~2028~~2026, and except to the extent the Company has irrevocably elected Physical Settlement pursuant to ‎Section 14.01(b)(ii) in a notice as described in such Section, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion Date (or any conversions for which the ~~period~~ relevant Conversion Date occurs after the Company’s issuance of a Notice of Redemption with respect to the Notes and prior to the related Redemption Date, or for which the relevant Conversion Date occurs on or after December 15, 2026 or for which the Company has irrevocably elected Physical Settlement pursuant to ‎‎Section 14.01(b)(ii) in a notice as described in ~~the fourth 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~~ Company, through the Trustee, 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 ~~of Notes called for redemption~~ (~~or deemed called for redemption pursuant to Section 14.01(b)(v)~~A) for which the relevant Conversion Date occurs ~~during~~ (x) after the date of issuance of a Notice of Redemption with respect to the Notes and prior to the related Redemption ~~Period~~Date, in ~~the relevant~~ such Notice of Redemption ~~Notice,~~ or (y) ~~any conversions of Notes for which the relevant Conversion Date occurs~~ on or after ~~October 1~~December 15, ~~2028~~2026, no later than ~~October 1~~December 15, ~~2028). If~~ 2026 or (B) to the extent the Company ~~calls all or any Notes for redemption and the related Redemption Date is on or after October 1, 2028, then the~~ has irrevocably elected Physical Settlement ~~Method that the Company elects to apply for conversions~~ pursuant to ~~Section 14.01(b)(v~~‎‎‎Section 14.01(b)(ii) ~~with~~ in 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 October 1, 2028~~notice as described in such Section). If the Company does not elect a Settlement Method ~~with respect to a conversion~~ prior to the deadline set forth in the ~~second~~ immediately preceding sentence, ~~then~~ the Company shall no longer have the right to elect a Cash Settlement ~~Method for~~ or Physical Settlement with respect to any conversion on such ~~conversion~~ Conversion Date or during such period, and the Company shall be deemed to have elected ~~the Default~~ Combination Settlement ~~Method~~ in respect of its Conversion Obligation, and the Specified Dollar Amount per $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 ~~to Holders (with a written copy to the Trustee and the Conversion Agent (if other than the Trustee))~~ electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. ~~The~~ By notice to all Holders, the Company ~~shall have the right~~may, ~~from time to time~~ prior to ~~October 1~~December 15, ~~2028~~2026, at its option, irrevocably elect to ~~change~~ satisfy its Conversion Obligation with respect to the ~~Default Settlement Method to~~ Notes through any Settlement Method that the Company is then permitted to elect, by sending notice to the Holders of the new Default Settlement Method (and, in such case, the Company will simultaneously send a copy of such notice to the Trustee and the Conversion Agent (if other than the Trustee)). In addition, by notice to Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to October 1, 2028, at its option, elect to (1) irrevocably fix the Settlement Method or (2) irrevocably eliminate any one or more (but not all) Settlement Methods (including eliminating Combination Settlement Method with a particular Specified Dollar Amount or range of Specified Dollar Amounts); provided the Company is then otherwise permitted to elect the applicable Settlement Method(s) so irrevocably elected or the Settlement Method(s) remaining after such irrevocable elimination, as applicable, and provided further, that in no event may the Company elect (whether directly or by eliminating all other Settlement Methods) Combination Settlement with a Specified Dollar Amount ~~that is less~~ per $1,000 principal amount of Notes of $1,000 or with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above a specific amount set forth in such election notice. If the Company irrevocably elects Combination Settlement with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of notes at or above a specific amount, the Company will, after the date of such election, inform Holders converting their Notes through the Trustee of such Specified Dollar Amount no later than the close of business on the Trading Day immediately following the relevant Conversion Date, or, if the Company does not timely notify Holders, such Specified Dollar Amount will be the specific amount set forth in the election notice unless, if no specific amount was set forth in the election notice, such Specified Dollar Amount will be $1,000 per $1,000 principal amount of Notes. ~~If the Company makes such an~~ Such irrevocable ~~election, then such~~ election ~~will~~ shall apply to for all conversions of Notes with a Conversion ~~Date~~ Dates occurring subsequent to delivery of such notice; provided, however, that is on or after the date the Company sends such notice and the Company shall, if needed, simultaneously change the Default Settlement Method to a Settlement Method that is consistent with such irrevocable election. Notwithstanding the foregoing, no such ~~irrevocable~~ election ~~or change of Default Settlement Method, as applicable, shall~~ will affect any Settlement Method theretofore elected (or deemed to be elected) with respect to any ~~Note pursuant to this Section 14.02~~Note. For the avoidance of doubt, such an irrevocable election, if ~~made~~made by the Company, ~~shall~~ will be effective without the need to amend this Indenture or the Notes, including pursuant to ~~Section 10.01(g~~‎‎‎Section 10.01(m). However, the Company may nonetheless choose to execute such an amendment at ~~the Company’s~~ its option. If the Company changes the Default Settlement Method or makes an irrevocable election, as applicable, pursuant to the immediately preceding paragraph, then, promptly, but in any event within two Business Days, the Company shall either post the Default Settlement Method or such irrevocable election, as applicable, on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with, or furnished to, the Commission. (iv) The ~~cash~~ cash, shares of Common Stock or combination of cash and shares of Common ~~Stock, if any,~~ 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 30 consecutive Trading Days during the related Observation Period; and (BC) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 30 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company ~~as soon as reasonably practicable~~ promptly following the last day of the Observation Period. ~~Following~~ 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 applicable 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 ~~a medallion-stamped guaranteed~~ an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common 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 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 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. ~~Subject to any procedures or requirements of the applicable Depositary in the case of any Global Note, if~~ If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b‎(b) above. Except as set forth in ~~Section~~ ‎‎Section 14.03(b) and ~~Section~~ ‎Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement (provided that, with respect to any Conversion Date following the Regular Record Date immediately preceding the Maturity Date where Physical Settlement applies to the related conversion, the Company shall settle any such conversion on the Maturity Date), or on the second Business Day immediately following the last Trading Day of the ~~relevant~~ Observation Period, in the case of any other Settlement Method. If any shares of Common Stock are due to a converting Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or ~~otherwise cause to be issued and delivered)~~ to such Holder, or such Holder’s nominee or nominees, the full number of shares of Common Stock to which such Holder shall be entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in ~~Authorized Denominations~~ authorized denominations in an aggregate principal amount 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 ~~Company~~ Conversion Agent 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 ~~Company~~ Trustee receives a sum 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, however,~~ provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record ~~as of the close of business~~ on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date~~, and the converting Holder shall not be required to make a corresponding payment~~. (i) The Person in whose name ~~any~~ the shares of Common Stock shall be issuable upon conversion shall be treated as a stockholder of record ~~of such shares~~ as of the close of business on the ~~last Trading Day of~~ relevant Conversion Date (if the ~~relevant Observation 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~~ elects to satisfy the ~~Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on the Daily VW~~relat

Appears in 1 contract

Sources: Indenture (Splunk 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~~ 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, ~~solely~~ cash (“Cash Settlement”), shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02. (i) All conversions ~~of Notes called for redemption (or deemed called for redemption pursuant to Section 14.01(b)(v))~~ for which the relevant Conversion ~~Date~~ Dates occurs ~~during the related Redemption Period, and all conversions for which the relevant Conversion Date occurs~~ (x) on or after ~~October 1~~November 15, ~~2028,~~ 2030 shall be settled using the same Settlement Method or (y) during a Redemption Period shall be settled using the same Settlement Method. (ii) Except for any conversions ~~referred to in Section 14.02(a)(i)~~ for which the relevant Conversion Date occurs during a Redemption ~~Period,~~ Period and any conversions for which the relevant Conversion Date occurs on or after ~~October 1~~November 15, ~~2028~~2030, the Company shall use the same Settlement Method for all conversions ~~with~~ occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions ~~with~~ that occur on different Conversion Dates. (iii) If, in respect of any Conversion Date (or ~~the period described~~ in the ~~fourth immediately succeeding set~~ case of ~~parentheses~~any conversions occurring (x) during a Redemption Period or (y) on or after November 15, ~~as the case may be~~2030), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company shall deliver such Settlement Notice ~~in writing~~ to converting ~~Holders (with a written copy to~~ 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 (x) ~~any 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 a ~~related~~ Redemption Period, in ~~the relevant~~ such Redemption Notice, or (y) ~~any conversions of Notes for which the relevant Conversion Date occurs~~ on or after ~~October 1~~November 15, ~~2028~~2030, no later than ~~October 1~~the close of business on Scheduled Trading Day immediately preceding November 15, ~~2028~~2030). If the Company calls all or any Notes for redemption and the related Redemption Date is on or after October 1, 2028, then the 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 October 1, 2028. If the Company does not timely elect a Settlement Method ~~with respect to a conversion~~ prior to the deadline set forth in the ~~second~~ immediately preceding sentence, ~~then~~ the Company shall no longer have the right to elect a Cash Settlement ~~Method~~ or Physical Settlement for such ~~conversion~~ Conversion Date or during such period and the Company shall be deemed to have elected ~~the Default~~ Combination Settlement ~~Method~~ in respect of its Conversion Obligation, and the Specified Dollar Amount per $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 ~~to Holders (with a written copy to the Trustee and the Conversion Agent (if other than the Trustee))~~ 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 shall have the right, from time to time prior to October 1, 2028, to change the Default Settlement Method to any Settlement Method that the Company is then permitted to elect, by sending~~ By notice to the Holders of the new Default Settlement Method (and, in such case, the Company will simultaneously send a copy of such notice to the Trustee and the Conversion Agent (if other than the Trustee)). In addition, by notice to Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee)Holders, the Company may, prior to ~~October 1~~November 15, ~~2028~~2030, at its option, irrevocably elect to ~~(1) irrevocably fix~~ satisfy its Conversion Obligation with respect to the Settlement Method or (2) irrevocably eliminate any one or more (but not all) Settlement Methods (including eliminating Combination Settlement Method with a particular Specified Dollar Amount or range of Specified Dollar Amounts); provided the Company is then otherwise permitted to elect the applicable Settlement Method(s) so irrevocably elected or the Settlement Method(s) remaining after such irrevocable elimination, as applicable, and provided further, that in no event may the Company elect (whether directly or by eliminating all other Settlement Methods) Notes through Combination Settlement with a Specified Dollar Amount ~~that is less than $1,000~~ per $1,000 principal amount of ~~Notes. If the Company makes~~ Notes of $1,000 for all Conversion Dates occurring subsequent to delivery of such an irrevocable election, then such election will apply to all conversions of Notes with a Conversion Date that is on or after the date the Company sends such notice and the Company shall, if needed, simultaneously change the Default Settlement Method to a Settlement Method that is consistent with such irrevocable election. Notwithstanding the foregoing, no such irrevocable election or change of Default Settlement Method, as applicable, 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 changes the Default Settlement Method or makes an irrevocable election, as applicable, pursuant to the immediately preceding paragraph, then, promptly, but in any event within two Business Days, the Company shall either post the Default Settlement Method or such irrevocable election, as applicable, on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with, or furnished to, the Commissionnotice. (iv) The ~~cash~~ cash, shares of Common Stock or combination of cash and shares of Common ~~Stock, if any,~~ 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 (BC) 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~~ 40consecutive 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 ~~as soon as reasonably practicable~~ promptly following the last day of the Observation Period. ~~Following~~ 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 applicable 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 (1) complete, manually sign and deliver ~~a medallion-stamped guaranteed~~ an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable 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 ~~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 surrendered for conversion by a Holder thereof if such ▇▇▇▇▇▇ 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. ~~Subject to any procedures or requirements of the applicable Depositary in the case of any Global Note, if~~ If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the second Business Day immediately following the last Trading Day of the relevant Observation Period, in the case of any other Settlement Method. If any shares of Common Stock are due to a converting Holder, the Company shall issue ~~and deliver (~~or ~~otherwise~~ cause to be ~~issued~~ issued, and ~~delivered)~~ 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 book-entry format through the Depositary,~~ entitled in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in ~~Authorized Denominations~~ authorized denominations in an aggregate principal amount 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 ~~Company~~ Conversion Agent 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 ~~Company~~ Trustee receives a sum 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 and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; ~~provided, however,~~ provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a ~~Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a~~ Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately ~~following~~ succeeding the corresponding Interest Payment Date; (3) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading Day immediately succeeding the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record ~~as of the close of business~~ on the Regular Record Date immediately preceding the Maturity Date, a Fundamental Change Repurchase Date or Redemption Date, in each case, as described above, shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted and/or repurchased, as applicable, following such Regular Record Date~~, 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 ~~shall be issuable~~ delivered 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~~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 VWVWAP on 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 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 (TheRealReal, 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, ~~solely~~ cash (“Cash Settlement”), shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02, (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02. (i) All conversions ~~of Notes called for redemption (or deemed called for redemption pursuant to Section 14.01(b)(v))~~ for which the relevant Conversion Date occurs ~~during~~ on or after the ~~related Redemption Period,~~ Final Settlement Method Election Date and all conversions for which the relevant Conversion Date occurs ~~on or~~ after ~~October 1, 2028~~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 (x) any conversions ~~referred to in Section 14.02(a)(i)~~ for which the relevant Conversion Date occurs ~~during~~ after the Company’s issuance of a Redemption ~~Period,~~ Notice with respect to the Notes but prior to the related Redemption Date and for (y) any conversions for which the relevant Conversion Date occurs on or after ~~October 1~~the Final Settlement Method Election Date (each of the periods in clauses (x) and (y), ~~2028~~the “Specified Periods”), the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion Date (or ~~the period described in the fourth immediately succeeding set of parentheses~~for all Conversion Dates during a Specified Period, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company shall deliver such Settlement Notice ~~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 ~~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 Specified Period (x) after the date of issuance of a Redemption Notice and prior to the related Redemption ~~Period~~Date, in ~~the relevant~~ such Redemption ~~Notice,~~ Notice or (y) ~~any conversions of Notes for which the relevant Conversion Date occurs~~ on or after ~~October 1, 2028~~the Final Settlement Method Election Date, no later than ~~October 1, 2028). If~~ the ~~Company calls all or any Notes for redemption and the related Redemption Date is on or after October 1, 2028, then the~~ Final 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 October 1, 2028Election date). If the Company does not elect a Settlement Method ~~with respect to a conversion~~ prior to the deadline set forth in the ~~second~~ immediately preceding sentence, ~~then~~ the Company shall no longer have the right to elect a Cash Settlement ~~Method for such conversion~~ or Physical Settlement and the Company shall be deemed to have elected ~~the Default~~ Combination Settlement ~~Method~~ in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. 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 (with a written copy to the Trustee and the Conversion Agent (if other than the Trustee))~~ 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 shall have the right, from time to time prior to October 1, 2028, to change the Default Settlement Method to any Settlement Method that the Company is then permitted to elect, by sending notice to the Holders of the new Default Settlement Method (and, in such case, the Company will simultaneously send a copy of such notice to the Trustee and the Conversion Agent (if other than the Trustee)). In addition, by notice to Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to October 1, 2028, at its option, elect to (1) irrevocably fix the Settlement Method or (2) irrevocably eliminate any one or more (but not all) Settlement Methods (including eliminating Combination Settlement Method with a particular Specified Dollar Amount or range of Specified Dollar Amounts); provided the Company is then otherwise permitted to elect the applicable Settlement Method(s) so irrevocably elected or the Settlement Method(s) remaining after such irrevocable elimination, as applicable, and provided further, that in no event may the Company elect (whether directly or by eliminating all other Settlement Methods) Combination Settlement with a Specified Dollar Amount that is less than $1,000 per $1,000 principal amount of Notes. If the Company makes such an irrevocable election, then such election will apply to all conversions of Notes with a Conversion Date that is on or after the date the Company sends such notice and the Company shall, if needed, simultaneously change the Default Settlement Method to a Settlement Method that is consistent with such irrevocable election. Notwithstanding the foregoing, no such irrevocable election or change of Default Settlement Method, as applicable, 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 changes the Default Settlement Method or makes an irrevocable election, as applicable, pursuant to the immediately preceding paragraph, then, promptly, but in any event within two Business Days, the Company shall either post the Default Settlement Method or such irrevocable election, as applicable, on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with, or furnished to, the Commission. (iv) The cash, shares of Common Stock (and cash in lieu of any fractional shares) or a combination of cash and shares of Common ~~Stock, if any,~~ 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 20 consecutive Trading Days during the related Observation Period; and (BC) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 20 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company ~~as soon as reasonably practicable~~ promptly following the last day of the applicable Observation Period. ~~Following~~ 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 ~~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 (1) ~~complete,~~ complete and manually sign ~~and deliver a medallion-stamped guaranteed~~ 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~~registered and deliver such Notice of Conversion to the Conversion Agent, (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 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 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 with respect to such Notes in accordance with Section 15.03. ~~Subject to any procedures or requirements of the applicable Depositary in the case of any Global Note, if~~ If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall ~~pay~~ satisfy its Conversion Obligations by paying or ~~deliver~~delivering, as the case may be, the consideration due in respect of the Conversion Obligation (i) on the ~~second~~ third Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement; or (ii) 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 ~~Holder~~Holders, the Company shall issue ~~and deliver (~~or ~~otherwise~~ cause to be ~~issued~~ issued, and ~~delivered)~~ 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 book-entry format through the Depositary,~~ entitled in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in ~~Authorized Denominations~~ authorized denominations in an aggregate principal amount 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~~Company, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax ~~or similar governmental charge required by law or~~ that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different 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 ~~Company~~ Conversion Agent 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 ~~Company~~ Trustee receives a sum 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, however,~~ provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately ~~following~~ succeeding the ~~corresponding Interest Payment Date;~~ date such interest is paid, (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately ~~following~~ succeeding the ~~corresponding Interest Payment Date~~date such interest is paid; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note~~. Therefore,~~ . (i) The Person in whose name the certificate for ~~the avoidance~~ any shares of ~~doubt, all Holders~~ Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the ~~Regular Record~~ relevant Conversion Date ~~immediately preceding~~ (if the ~~Maturity Date shall receive~~ Company elects to satisfy the full interest payment due on the Maturity 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. (irelated Conversion Obligation by Physical Settlement) ~~The Person in whose name any shares of Common Stock shall be issuable upon conversion shall be treated as a stockholder of record of such shares as of the close of business on~~ or the last Trading Day of the relevant Observation ~~Period~~Period (if the Company elects (or is deemed to have elected) to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common 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 VWVWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or has been 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 (PTC 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~~ will pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, ~~solely cash (“Cash Settlement”), or~~ a ~~combination~~ Settlement Amount” equal to the sum of ~~cash and shares~~ the Daily Settlement Amounts for each of ~~Common Stock~~the 30 consecutive Trading Days during the relevant Observation Period for such Note, together with cash, if applicable, in lieu of delivering any fractional ~~share of Common Stock~~ Ordinary Share in accordance with subsection (j) of this Section ~~14.02 (“Combination Settlement”), at its election, as set forth in this Section~~ 14.02. (i) All conversions ~~of 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~~ a Redemption Period, and all conversions for which the relevant Conversion Date occurs on or after ~~October 1~~September 16, ~~2028,~~ 2030 shall be settled using the same ~~Settlement Method~~forms and proportions of consideration. (ii) Except for any conversions ~~referred to in Section 14.02(a)(i)~~ for which the relevant Conversion Date occurs during a Redemption ~~Period,~~ Period and any conversions for which the relevant Conversion Date occurs on or after ~~October 1~~September 16, ~~2028~~2030, the Company shall use the same ~~Settlement Method~~ forms and proportions of consideration for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same ~~Settlement Method~~ forms and proportions of consideration with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion Date (or any conversions for which the ~~period described in~~ relevant Conversion Date occurs during a Redemption Period or any conversions for which the ~~fourth immediately succeeding set of parentheses~~relevant Conversion Date occurs on or after September 16, ~~as the case may be~~2030), the Company elects to settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cash, the Company will deliver a notice (the “~~Settlement~~ Cash Percentage Notice”) of ~~the relevant Settlement Method~~ such election in respect of such Conversion Date (or such period, as the case may be~~), the Company shall deliver such Settlement Notice in writing~~ ) to converting ~~Holders (with a written copy to~~ Holders, the Trustee and the Conversion Agent (if other than the Trustee)) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of (x) any conversions ~~of 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~~ related Redemption ~~Notice,~~ Notice or (y) any conversions of Notes for which the relevant Conversion Date occurs on or after ~~October 1~~September 16, ~~2028~~2030, no later than ~~October 1~~September 16, ~~2028~~2030) (in each case, the “Cash Percentage Election Deadline”)~~. If~~ , and the Company ~~calls all or any~~ will indicate in such Cash Percentage Notice the percentage of the Conversion Obligation in excess of the principal portion of the Notes ~~for redemption and~~ being converted that will be paid in cash (the related Redemption Date is on or after October 1, 2028, then the 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 October 1, 2028“Cash Percentage”). If the Company does not ~~elect~~ timely make such an election of a ~~Settlement Method with respect to a conversion~~ Cash Percentage at or prior to the ~~deadline set forth in the second immediately preceding sentence~~applicable Cash Percentage Election Deadline, ~~then~~ the Company ~~shall~~ will no longer have the right to elect a ~~Settlement Method for~~ Cash Percentage with respect to any conversion on such ~~conversion~~ Conversion Date or during such period, and the Company ~~shall~~ will be deemed to have elected ~~the Default Settlement Method in respect~~ a Cash Percentage of its Conversion Obligation. 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 (with a written copy to the Trustee and the Conversion Agent (if other than the Trustee)) 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 shall have the right, from time to time prior to October 1, 2028, to change the Default Settlement Method to any Settlement Method that the Company is then permitted to elect, by sending notice to the Holders of the new Default Settlement Method (and, in such case, the Company will simultaneously send a copy of such notice to the Trustee and the Conversion Agent (if other than the Trustee)). In addition, by notice to Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to October 1, 2028, at its option, elect to (1) irrevocably fix the Settlement Method or (2) irrevocably eliminate any one or more (but not all) Settlement Methods (including eliminating Combination Settlement Method with a particular Specified Dollar Amount or range of Specified Dollar Amounts); provided the Company is then otherwise permitted to elect the applicable Settlement Method(s) so irrevocably elected or the Settlement Method(s) remaining after such irrevocable elimination, as applicable, and provided further, that in no event may the Company elect (whether directly or by eliminating all other Settlement Methods) Combination Settlement with a Specified Dollar Amount that is less than $1,000 per $1,000 principal amount of Notes. If the Company makes such an irrevocable election, then such election will apply to all conversions of Notes with a Conversion Date that is on or after the date the Company sends such notice and the Company shall, if needed, simultaneously change the Default Settlement Method to a Settlement Method that is consistent with such irrevocable election. Notwithstanding the foregoing, no such irrevocable election or change of Default Settlement Method, as applicable, shall affect any Settlement Method theretofore elected (or deemed to be elected) 0% 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 changes the Default Settlement Method or makes an irrevocable election, as applicable, pursuant to the immediately preceding paragraph, then, promptly, but in any event within two Business Days, the Company shall either post the Default Settlement Method or such irrevocable election, as applicable, on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with, or furnished to, the Commissionconversion. (iv) The ~~cash or combination of cash and shares of Common Stock, if any, 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 Cash Settlement~~Amounts, 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 (B) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted, a Net 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 ~~as soon as reasonably practicable~~ promptly following the last day of the Observation Period. ~~Following~~ Promptly after (and in any event within one Business Day following the last day of the Observation Period) such determination of the Daily Settlement ~~Amounts or~~ Amounts, Daily Net Settlement Amounts, the Daily Conversion Values~~, as the case may be~~, and the amount of cash payable in lieu of delivering any fractional ~~share of Common Stock~~Ordinary Shares, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) in writing of the Daily Settlement ~~Amounts or~~ Amounts, the Daily Net Settlement Amounts, the Daily Conversion Values~~, as the case may be~~, and the amount of cash payable in lieu of delivering fractional ~~shares of Common Stock~~Ordinary Shares. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) (i) Subject to Section 14.02(e), ~~before~~ in the case of a Global Note, in order for any Holder of a Note ~~shall be entitled~~ to convert a Note as set forth above, such Holder shall ~~(i) in the case of a Global Note,~~ comply with the procedures of the Depositary in effect at that time and, if required, pay ~~to the Company~~ funds equal to ~~interest~~ any Special Interest payable on the next Special Interest Payment Date as set forth in Section ~~14.02(h~~14.02(i) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver a medallion-stamped guaranteed irrevocable notice to the Conversion Agent 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 pay all transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay to the Company funds equal to interest payable on the next Interest Payment Date 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 surrendered by a Holder thereof if such ▇▇▇▇▇▇ 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. Subject to any procedures or requirements of the applicable Depositary in the case of any Global Note, if more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 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 second Business Day immediately following the last Trading Day of the relevant Observation Period. If any shares of Common Stock are due to a converting Holder, the Company shall issue and deliver (or otherwise cause to be issued and delivered) to such Holder, or such Holder’s nominee or nominees, the full number of shares of Common Stock to which such Holder shall be entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in Authorized Denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue or delivery of any shares of Common 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 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 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 interesttaxes, if any, ~~except as set forth below~~required pursuant to Section 14.02(e). The ~~Company’s settlement~~ exercise of ~~the full Conversion Obligation~~ such conversion right shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and 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, however, that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record as of the close of business on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date 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 paymentirrevocable. (i) The Person in whose name any shares of Common Stock shall be issuable upon conversion shall be treated as a stockholder of record of such shares as of the close of business on the last Trading Day of the relevant Observation 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 VW

Appears in 1 contract

Sources: Indenture (Check Point Software Technologies LTD)

Appears in 1 contract

Sources: Indenture (Patrick Industries 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~~ 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, ~~solely~~ cash (“Cash Settlement”), shares of the Class A Common Stock (“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~~ the Class A Common Stock ~~in accordance with subsection (j) of this Section 14.02~~ (“Combination Settlement”)~~, at its election~~, as set forth in this Section 14.02. (i) All conversions ~~of Notes called for redemption (or deemed called for redemption pursuant to Section 14.01(b)(v))~~ for which the relevant Conversion Date occurs ~~during~~ after the Company’s issuance of a Redemption Notice and prior to the Scheduled Trading Day immediately preceding the related Redemption ~~Period,~~ Date and all conversions of Notes for which the relevant Conversion Date occurs on or after May 30, 2030 shall be settled using the same Settlement Method (including the same relative proportion of cash and/or shares of the Class A Common Stock, except that cash in lieu of delivering any fractional share of Class A Common Stock shall not be taken into account in determining such proportion) as all other conversions for which the relevant Conversion Date occurs on or after ~~October 1~~May 30, ~~2028, shall be settled using the same Settlement Method. (ii)~~ 2030. Except for any conversions ~~referred to in Section 14.02(a)(i)~~ for which the relevant Conversion Date occurs ~~during~~ after the Company’s issuance of a Redemption ~~Period,~~ Notice and ~~any~~ prior to the Scheduled Trading Day immediately preceding the related Redemption Date and all conversions of Notes for which the relevant Conversion Date occurs on or after ~~October 1~~May 30, ~~2028~~2030, the Company shall use the same Settlement Method (including the same relative proportion of cash and/or shares of the Class A Common Stock, except that cash in lieu of delivering any fractional share of Class A Common Stock shall not be taken into account in determining such proportion) for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (~~iii~~ii) ~~If, in respect of any Conversion Date (or the period described in the fourth immediately succeeding set of parentheses, as the case may be),~~ If the Company elects ~~to deliver~~ a ~~notice (the “~~Settlement ~~Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be)~~Method, the Company shall deliver ~~such Settlement Notice in writing~~ notice to ~~converting~~ Holders ~~(with a written copy to the Trustee and~~ through the Conversion Agent ~~(if other than~~ of such Settlement Method the ~~Trustee))~~ Company has selected no later than the close of business on the Trading Day immediately following the ~~relevant~~ related Conversion Date (or, in the case of (x) any 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 a related Redemption Period, in the relevant Redemption Notice, or (y) any conversions of Notes for which the relevant Conversion Date occurs (x) after the date of issuance of a Redemption Notice and prior to the Scheduled Trading Day immediately preceding the related Redemption Date, in such Redemption Notice or (y) on or after ~~October 1~~May 30, ~~2028~~2030, no later than ~~October 1~~May 30, ~~2028~~2030). If the Company calls all or any Notes for redemption and the related Redemption Date is on or after October 1, 2028, then the 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 October 1, 2028. If the Company does not timely elect a Settlement ~~Method with respect to a conversion prior to the deadline set forth in the second immediately preceding sentence~~Method, ~~then~~ the Company shall no longer have the right to elect a Cash Settlement ~~Method for such conversion~~ or Physical Settlement with respect to that Conversion Date and the Company shall be deemed to have elected the Default Settlement Method in respect of its Conversion Obligation. 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 (with a written copy to the Trustee and the Conversion Agent (if other than the Trustee)) 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~~Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be ~~deemed~~ equal to be $1,000. ~~The Company shall have the right, from time to time prior to October 1, 2028, to change the Default Settlement Method to any Settlement Method that~~ If the Company ~~is then permitted to elect, by sending notice to the~~ has timely elected Combination Settlement in respect of any conversion but does not timely notify converting Holders of the new Default Settlement Method (and, in such case, the Company will simultaneously send a copy of such notice to the Trustee and the Conversion Agent (if other than the Trustee)). In addition, by notice to Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to October 1, 2028, at its option, elect to (1) irrevocably fix the Settlement Method or (2) irrevocably eliminate any one or more (but not all) Settlement Methods (including eliminating Combination Settlement Method with a particular Specified Dollar Amount or range of Specified Dollar Amounts); provided the Company is then otherwise permitted to elect the applicable Settlement Method(s) so irrevocably elected or the Settlement Method(s) remaining after such irrevocable elimination, as applicable, and provided further, that in no event may the Company elect (whether directly or by eliminating all other Settlement Methods) Combination Settlement with a Specified Dollar Amount that is less than $1,000 per $1,000 principal amount of Notes~~. If~~ , or the Company ~~makes such an irrevocable election~~is deemed to have elected Combination Settlement, ~~then such election will apply to all conversions of Notes with a Conversion Date that is on or after~~ the date the Company sends such notice and the Company shall, if needed, simultaneously change the Default Settlement Method to a Settlement Method that is consistent with such irrevocable election. Notwithstanding the foregoing, no such irrevocable election or change of Default Settlement Method, as applicable, Specified Dollar Amount shall ~~affect any Settlement Method theretofore elected (or~~ be 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 changes the Default Settlement Method or makes an irrevocable election, as applicable, pursuant to the immediately preceding paragraph, then, promptly, but in any event within two Business Days, the Company shall either post the Default Settlement Method or such irrevocable election, as applicable, on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with, or furnished to, the Commission$1,000. (iviii) The ~~cash~~ cash, shares of Class A Common Stock or combination of cash and shares of Class A Common ~~Stock, if any,~~ Stock payable or deliverable by the Company in respect of any conversion of Notes (the “Settlement Amount”) shall be computed by the Company as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Class A Common Stock equal to the Conversion Rate on the Conversion Date (plus cash in lieu of any fractional share of Class A Common Stock issuable upon conversion); (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 45 consecutive VWAP Trading Days during the related Observation Period; and (BC) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or and deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being ~~converted,~~ converted a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 45 consecutive VWAP Trading Days during the related Observation ~~Period.~~ Period (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company as soon as reasonably practicable following the last day of the Observation Period. Following such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of plus cash ~~payable~~ in lieu of ~~delivering~~ any fractional share of Common Stock, the 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 as set forth in Section 14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver a medallion-stamped guaranteed irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Class A Common Stock ~~to be delivered~~ issuable 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 as set forth in Section 14.02(hconversion). 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 surrendered by a Holder thereof if such ▇▇▇▇▇▇ 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. Subject to any procedures or requirements of the applicable Depositary in the case of any Global Note, if If more than one Note shall be surrendered for conversion at any one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted ~~thereby~~hereby) so surrendered. (iv) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last VWAP Trading Day of the related Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and, if applicable, the amount of cash payable in lieu of any fractional share of Class A Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and, if applicable, the amount of cash payable in lieu of fractional shares of Class A Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (i) To convert a beneficial interest in a Global Note (which conversion is irrevocable), the holder of such beneficial interest must: (A) comply with the Applicable Procedures; (B) if required, pay funds equal to all documentary, stamp or similar issue or transfer tax owed as set forth in Section 14.02(d) and Section 14.02(e); and (C) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(g); and (ii) To convert a Certificated Note, the Holder must: (A) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a PDF thereof) (a “Notice of Conversion”) to the Conversion Agent and surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent; (B) if required, furnish appropriate endorsements and transfer documents; (C) if required, pay funds equal to all documentary, stamp or similar issue or transfer tax owed as set forth in Section 14.02(d) and Section 14.02(e); and (D) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(g). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion or, if notice on such date is not feasible given the nature of the conversion, promptly thereafter. To the extent the Company enters into any note hedge transaction (or any other hedging transaction) with one or more counterparties in connection with the offering and sale of the Notes, the Trustee (and if different, the Conversion Agent) agree to notify each such counterparty of each such conversion, in such manner and containing such information as may be directed by the Company from time to time. If a Holder has already delivered a Fundamental Change Repurchase Notice with respect to a Note, such Holder may not surrender such Note for conversion until such Holder has validly withdrawn such Fundamental Change Repurchase Notice (or, in the case of a Global Note, has complied with the Applicable Procedures with respect to such a withdrawal) in accordance with the terms of Section 15.03. If a Holder has already delivered a Fundamental Change Repurchase Notice, such ▇▇▇▇▇▇’s right to withdraw such notice and convert the Notes that are subject to repurchase will terminate at the close of business on the Business Day immediately preceding the relevant Fundamental Change Repurchase Date. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in ~~subsection (b~~Section 14.02(b) above. ~~Except as set forth in~~ Subject to the provisions of Section 14.03(b) 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 on: (i) the second Business Day immediately following the relevant Conversion Date (or, if earlier, the Maturity Date), if the Company elects Physical Settlement; or (ii) the second Business Day immediately following the last VWAP Trading Day of the relevant Observation Period, if the Company elects Cash Settlement or if the Company elects or is deemed to have elected Combination Settlement. If any shares of Class A Common Stock are due to a converting ~~Holder~~Holders, the Company shall issue ~~and deliver (~~or ~~otherwise~~ cause to be ~~issued~~ issued, and ~~delivered)~~ deliver to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary, as the case may be, for the full number of shares of Class A Common Stock to which such Holder shall be ~~entitled, in book-entry format through the Depositary,~~ entitled in satisfaction of the Company’s Conversion Obligation. (d) In case any Certificated Note shall be surrendered for partial conversion, in $1,000 principal amount (or $1.00 if PIK Interest has been paid) or an integral multiple of $1.00 in excess thereof, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder ~~of the Note~~ so surrendered a new Note or Notes in ~~Authorized Denominations~~ authorized denominations in an aggregate principal amount 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~~ issuance of any shares of Class A 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 ~~Company~~ Conversion Agent may refuse to deliver the certificates ~~(or book-entry evidence)~~ representing the shares of Class A Common Stock being issued in a name other than the Holder’s name until the ~~Company~~ Trustee receives a sum 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 Class A 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, however,~~ provided that no such payment ~~shall~~ need be ~~required~~ made: (1i) if the Notes are surrendered for ~~conversions~~ conversion following the Regular Record Date immediately preceding the Maturity Date; ; (2ii) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the ~~Business~~ second Scheduled Trading Day immediately following the corresponding Interest Payment Date; ; (3iii) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or or (4iv) to the extent of any ~~Defaulted 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, any Redemption Date as described in Section 14.02(g)(ii) above and any Fundamental Change Repurchase Date described in Section 14.02(g)(iii) above shall receive and retain the full interest payment due on the Maturity Date, any Redemption Date described in ~~cash~~ Section 14.02(g)(ii) above, any Fundamental Change Repurchase Date, any Fundamental Change Repurchase Date described in Section 14.02(g)(iii) above or other applicable Interest Payment Date regardless of whether their Notes have been converted following such Regular Record ~~Date,~~ Date and the converting Holder ~~shall~~ will not be required to make ~~a corresponding~~ any interest payment. (ih) The Person in whose name any shares of Class A Common Stock ~~shall be issuable~~ delivered upon conversion are registered shall ~~be treated as a stockholder~~ become the holder of record of such shares as of the close of business on (i) the relevant Conversion Date if the Company elects Physical Settlement or (ii) the last VWAP Trading Day of the relevant Observation ~~Period~~Period if the Company elects or is deemed to have elected Combination Settlement. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion; provided that (a) the converting Holder shall have the right to receive the Settlement Amount due upon conversion and (b) in the case of a conversion between a Regular Record Date and the corresponding Interest Payment Date, the Holder of record as of the close of business on such Regular Record Date shall have the right to receive the interest payable on such Interest Payment Date, in accordance with Section 14.02(g). (ji) The Company shall not issue any fractional share of Class A Common Stock upon conversion of the Notes and shall instead pay cash in lieu of ~~delivering~~ any fractional share of Class A Common Stock issuable upon conversion in an amount based on (i) the Daily VWVWAP on the relevant Conversion Date if the Company elects Physical Settl

Appears in 1 contract

Sources: Indenture (SNR Wireless LicenseCo, LLC)

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~~ 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, ~~solely~~ cash (“Cash Settlement”), shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with ~~cash~~a cash payment, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02. ~~(i)~~ 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 (x) on or after ~~October 1~~January 15, ~~2028~~2026 or (y) during a Redemption Period, shall be settled using the same Settlement Method. (ii) . Except for any conversions ~~referred to in Section 14.02(a)(i)~~ for which the relevant Conversion Date occurs during a Redemption ~~Period,~~ Period and any conversions for which the relevant Conversion Date occurs on or after ~~October 1~~January 15, ~~2028~~2026, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) . If, in respect of any Conversion Date (or the period described in the ~~fourth~~ 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 shall deliver such Settlement Notice in writing to converting ~~Holders (with a written copy to~~ Holders, the Trustee and the Conversion Agent (if other than the Trustee)) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of ~~(x)~~ any conversions ~~of Notes called for redemption (or deemed called for redemption pursuant to Section 14.01(b)(v))~~ for which the relevant Conversion Date occurs (x) during a ~~related~~ Redemption Period, in ~~the relevant~~ such Redemption Notice, or (y) ~~any conversions of Notes for which the relevant Conversion Date occurs~~ on or after ~~October 1~~January 15, ~~2028~~2026, no later than ~~October 1~~January 15, ~~2028~~2026). If the Company calls all or any Notes for redemption and the related Redemption Date is on or after October 1, 2028, then the 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 October 1, 2028. If the Company does not elect a Settlement Method ~~with respect to a conversion~~ prior to the deadline set forth in the ~~second~~ immediately preceding sentence, ~~then~~ the Company shall no longer have the right to elect a Cash Settlement ~~Method for~~ or Physical Settlement with respect to any conversion on such ~~conversion~~ Conversion Date or during such period, as the case may be, and the Company shall be deemed to have elected ~~the Default~~ Combination Settlement ~~Method~~ in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. 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~~Notes to be converted. If the Company delivers a Settlement Notice ~~to Holders (with a written copy to the Trustee and the Conversion Agent (if other than the Trustee))~~ 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. iv. The ~~Company shall have the right~~cash, ~~from time to time prior to October 1, 2028, to change the Default Settlement Method to any Settlement Method that the Company is then permitted to elect, by sending notice to the Holders~~ shares of the new Default Settlement Method (and, in such case, the Company will simultaneously send a copy of such notice to the Trustee and the Conversion Agent (if other than the Trustee)). In addition, by notice to Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to October 1, 2028, at its option, elect to (1) irrevocably fix the Settlement Method or (2) irrevocably eliminate any one or more (but not all) Settlement Methods (including eliminating Combination Settlement Method with a particular Specified Dollar Amount or range of Specified Dollar Amounts); provided the Company is then otherwise permitted to elect the applicable Settlement Method(s) so irrevocably elected or the Settlement Method(s) remaining after such irrevocable elimination, as applicable, and provided further, that in no event may the Company elect (whether directly or by eliminating all other Settlement Methods) Combination Settlement with a Specified Dollar Amount that is less than $1,000 per $1,000 principal amount of Notes. If the Company makes such an irrevocable election, then such election will apply to all conversions of Notes with a Conversion Date that is on or after the date the Company sends such notice and the Company shall, if needed, simultaneously change the Default Settlement Method to a Settlement Method that is consistent with such irrevocable election. Notwithstanding the foregoing, no such irrevocable election or change of Default Settlement Method, as applicable, 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 changes the Default Settlement Method or makes an irrevocable election, as applicable, pursuant to the immediately preceding paragraph, then, promptly, but in any event within two Business Days, the Company shall either post the Default Settlement Method or such irrevocable election, as applicable, on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with, or furnished to, the Commission. (iv) The cash Common Stock or combination of cash and shares of Common ~~Stock, if any,~~ Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: ~~(A)~~ 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 10 consecutive Trading Days during the related Observation Period; and ~~(B)~~ C. if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 10 consecutive Trading Days during the related Observation Period. ~~(v)~~ v. The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company ~~as soon as reasonably practicable~~ promptly following the last day of the Observation Period. ~~Following~~ 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 ~~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 (1) complete, manually sign and deliver ~~a medallion-stamped guaranteed~~ 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 ~~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 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 surrendered by a Holder thereof if such ~~▇▇▇▇▇▇~~ Holder has also delivered a ~~Fundamental Change~~ Repurchase Event Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such ~~Fundamental Change~~ Repurchase Event Repurchase Notice in accordance with Section 15.03~~. Subject to any procedures or requirements of the applicable Depositary~~ , in the case of ~~any~~ Physical Notes, or through the applicable procedures of the Depositary, in the case of Global ~~Note, if~~ Notes. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall ~~pay or deliver, as the case may be,~~ deliver the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the second Business Day immediately following the last Trading Day of the ~~relevant~~ Observation Period, in the case of any other Settlement Method. If any shares of Common Stock are due to a converting ~~Holder~~Holders, the Company shall issue ~~and deliver (~~or ~~otherwise~~ cause to be ~~issued~~ issued, and ~~delivered)~~ 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 book-entry format through the Depositary,~~ entitled in satisfaction of the Company’s Conversion Obligation. (d) In case any Physical Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in ~~Authorized Denominations~~ authorized denominations in an aggregate principal amount 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 Company shall work directly with its stock transfer agent to effect any delivery of Common Stock in connection with a conversion. The Conversion Agent 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 ~~Company~~ Trustee receives a sum 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~~excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~not including~~excluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; ~~provided, however,~~ provided that no such payment shall be required (1) for conversions ~~following~~ after the close of business on the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a ~~Redemption~~ Repurchase Event Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a ~~Fundamental Change Repurchase~~ Redemption Date that is after a Regular Record Date and on or prior to the ~~Business Day~~ second Scheduled Trading day immediately ~~following~~ succeeding the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record ~~as of~~ after the close of business on the Regular Record Date immediately preceding the Maturity Date, any Repurchase Event Repurchase Date or Redemption Date, in each case, as described above, shall receive the full interest payment in cash due on the Maturity Date ~~in cash~~ or other applicable Interest Payment Date regardless of whether their Notes have been converted or redeemed following such Regular Record Date~~, and the converting Holder shall not be required to make a corresponding payment~~. (i) The Person in whose name ~~any~~ the shares of Common Stock shall be issuable upon conversion shall be treated as a stockholder of record ~~of such shares~~ as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation ~~Period~~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 VWVWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of 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: Note Purchase Agreement (NantHealth, 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~~ 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, ~~solely~~ cash (“Cash Settlement”), shares of the Class A Common Stock (“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~~ the Class A Common Stock ~~in accordance with subsection (j) of this Section 14.02~~ (“Combination Settlement”)~~, at its election~~, as set forth in this Section 14.02. (i) All conversions ~~of Notes called for redemption (or deemed called for redemption pursuant to Section 14.01(b)(v))~~ for which the relevant Conversion Date occurs ~~during~~ after the Company’s issuance of a Redemption Notice and prior to the Scheduled Trading Day immediately preceding the related Redemption ~~Period,~~ Date and all conversions of Notes for which the relevant Conversion Date occurs on or after May 30, 2030 shall be settled using the same Settlement Method (including the same relative proportion of cash and/or shares of the Class A Common Stock, except that cash in lieu of delivering any fractional share of Class A Common Stock shall not be taken into account in determining such proportion) as all other conversions for which the relevant Conversion Date occurs on or after ~~October 1~~May 30, ~~2028, shall be settled using the same Settlement Method. (ii)~~ 2030. Except for any conversions ~~referred to in Section 14.02(a)(i)~~ for which the relevant Conversion Date occurs ~~during~~ after the Company’s issuance of a Redemption ~~Period,~~ Notice and ~~any~~ prior to the Scheduled Trading Day immediately preceding the related Redemption Date and all conversions of Notes for which the relevant Conversion Date occurs on or after ~~October 1~~May 30, ~~2028~~2030, the Company shall use the same Settlement Method (including the same relative proportion of cash and/or shares of the Class A Common Stock, except that cash in lieu of delivering any fractional share of Class A Common Stock shall not be taken into account in determining such proportion) for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (~~iii~~ii) ~~If, in respect of any Conversion Date (or the period described in the fourth immediately succeeding set of parentheses, as the case may be),~~ If the Company elects ~~to deliver~~ a ~~notice (the “~~Settlement ~~Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be)~~Method, the Company shall deliver ~~such Settlement Notice in writing~~ notice to ~~converting~~ Holders ~~(with a written copy to the Trustee and~~ through the Conversion Agent ~~(if other than~~ of such Settlement Method the ~~Trustee))~~ Company has selected no later than the close of business on the Trading Day immediately following the ~~relevant~~ related Conversion Date (or, in the case of (x) any 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 a related Redemption Period, in the relevant Redemption Notice, or (y) any conversions of Notes for which the relevant Conversion Date occurs (x) after the date of issuance of a Redemption Notice and prior to the Scheduled Trading Day immediately preceding the related Redemption Date, in such Redemption Notice or (y) on or after ~~October 1~~May 30, ~~2028~~2030, no later than ~~October 1~~May 30, ~~2028~~2030). If the Company calls all or any Notes for redemption and the related Redemption Date is on or after October 1, 2028, then the 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 October 1, 2028. If the Company does not timely elect a Settlement ~~Method with respect to a conversion prior to the deadline set forth in the second immediately preceding sentence~~Method, ~~then~~ the Company shall no longer have the right to elect a Cash Settlement ~~Method for such conversion~~ or Physical Settlement with respect to that Conversion Date and the Company shall be deemed to have elected the Default Settlement Method in respect of its Conversion Obligation. 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 (with a written copy to the Trustee and the Conversion Agent (if other than the Trustee)) 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~~Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be ~~deemed~~ equal to be $1,000. ~~The Company shall have the right, from time to time prior to October 1, 2028, to change the Default Settlement Method to any Settlement Method that~~ If the Company ~~is then permitted to elect, by sending notice to the~~ has timely elected Combination Settlement in respect of any conversion but does not timely notify converting Holders of the new Default Settlement Method (and, in such case, the Company will simultaneously send a copy of such notice to the Trustee and the Conversion Agent (if other than the Trustee)). In addition, by notice to Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to October 1, 2028, at its option, elect to (1) irrevocably fix the Settlement Method or (2) irrevocably eliminate any one or more (but not all) Settlement Methods (including eliminating Combination Settlement Method with a particular Specified Dollar Amount or range of Specified Dollar Amounts); provided the Company is then otherwise permitted to elect the applicable Settlement Method(s) so irrevocably elected or the Settlement Method(s) remaining after such irrevocable elimination, as applicable, and provided further, that in no event may the Company elect (whether directly or by eliminating all other Settlement Methods) Combination Settlement with a Specified Dollar Amount that is less than $1,000 per $1,000 principal amount of Notes~~. If~~ , or the Company ~~makes such an irrevocable election~~is deemed to have elected Combination Settlement, ~~then such election will apply to all conversions of Notes with a Conversion Date that is on or after~~ the date the Company sends such notice and the Company shall, if needed, simultaneously change the Default Settlement Method to a Settlement Method that is consistent with such irrevocable election. Notwithstanding the foregoing, no such irrevocable election or change of Default Settlement Method, as applicable, Specified Dollar Amount shall ~~affect any Settlement Method theretofore elected (or~~ be 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 changes the Default Settlement Method or makes an irrevocable election, as applicable, pursuant to the immediately preceding paragraph, then, promptly, but in any event within two Business Days, the Company shall either post the Default Settlement Method or such irrevocable election, as applicable, on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with, or furnished to, the Commission$1,000. (iviii) The ~~cash~~ cash, shares of Class A Common Stock or combination of cash and shares of Class A Common ~~Stock, if any,~~ Stock payable or deliverable by the Company in respect of any conversion of Notes (the “Settlement Amount”) shall be computed by the Company as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Class A Common Stock equal to the Conversion Rate on the Conversion Date (plus cash in lieu of any fractional share of Class A Common Stock issuable upon conversion); (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 45 consecutive VWAP Trading Days during the related Observation Period; and (BC) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or and deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being ~~converted,~~ converted a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 45 consecutive VWAP Trading Days during the related Observation ~~Period.~~ Period (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company as soon as reasonably practicable following the last day of the Observation Period. Following such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of plus cash ~~payable~~ in lieu of ~~delivering~~ any fractional share of Common Stock, the 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 as set forth in Section 14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver a medallion-stamped guaranteed irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Class A Common Stock ~~to be delivered~~ issuable 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 as set forth in Section 14.02(hconversion). 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 surrendered by a Holder thereof if such ▇▇▇▇▇▇ 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. Subject to any procedures or requirements of the applicable Depositary in the case of any Global Note, if If more than one Note shall be surrendered for conversion at any one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted ~~thereby~~hereby) so surrendered. (iv) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last VWAP Trading Day of the related Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and, if applicable, the amount of cash payable in lieu of any fractional share of Class A Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and, if applicable, the amount of cash payable in lieu of fractional shares of Class A Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (i) To convert a beneficial interest in a Global Note (which conversion is irrevocable), the holder of such beneficial interest must: (A) comply with the Applicable Procedures; (B) if required, pay funds equal to all documentary, stamp or similar issue or transfer tax owed as set forth in Section 14.02(d) and Section 14.02(e); and (C) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(g); and (ii) To convert a Certificated Note, the Holder must: (A) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a PDF thereof) (a “Notice of Conversion”) to the Conversion Agent and surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent; (B) if required, furnish appropriate endorsements and transfer documents; (C) if required, pay funds equal to all documentary, stamp or similar issue or transfer tax owed as set forth in Section 14.02(d) and Section 14.02(e); and (D) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(g). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion or, if notice on such date is not feasible given the nature of the conversion, promptly thereafter. To the extent the Company enters into any note hedge transaction (or any other hedging transaction) with one or more counterparties in connection with the offering and sale of the Notes, the Trustee (and if different, the Conversion Agent) agree to notify each such counterparty of each such conversion, in such manner and containing such information as may be directed by the Company from time to time. If a Holder has already delivered a Fundamental Change Repurchase Notice with respect to a Note, such Holder may not surrender such Note for conversion until such Holder has validly withdrawn such Fundamental Change Repurchase Notice (or, in the case of a Global Note, has complied with the Applicable Procedures with respect to such a withdrawal) in accordance with the terms of Section 15.03. If a Holder has already delivered a Fundamental Change Repurchase Notice, such Ho▇▇▇▇’s right to withdraw such notice and convert the Notes that are subject to repurchase will terminate at the close of business on the Business Day immediately preceding the relevant Fundamental Change Repurchase Date. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in ~~subsection (b~~Section 14.02(b) above. ~~Except as set forth in~~ Subject to the provisions of Section 14.03(b) 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 on: (i) the second Business Day immediately following the relevant Conversion Date (or, if earlier, the Maturity Date), if the Company elects Physical Settlement; or (ii) the second Business Day immediately following the last VWAP Trading Day of the relevant Observation Period, if the Company elects Cash Settlement or if the Company elects or is deemed to have elected Combination Settlement. If any shares of Class A Common Stock are due to a converting ~~Holder~~Holders, the Company shall issue ~~and deliver (~~or ~~otherwise~~ cause to be ~~issued~~ issued, and ~~delivered)~~ deliver to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary, as the case may be, for the full number of shares of Class A Common Stock to which such Holder shall be ~~entitled, in book-entry format through the Depositary,~~ entitled in satisfaction of the Company’s Conversion Obligation. (d) In case any Certificated Note shall be surrendered for partial conversion, in $1,000 principal amount (or $1.00 if PIK Interest has been paid) or an integral multiple of $1.00 in excess thereof, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder ~~of the Note~~ so surrendered a new Note or Notes in ~~Authorized Denominations~~ authorized denominations in an aggregate principal amount 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~~ issuance of any shares of Class A 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 ~~Company~~ Conversion Agent may refuse to deliver the certificates ~~(or book-entry evidence)~~ representing the shares of Class A Common Stock being issued in a name other than the Holder’s name until the ~~Company~~ Trustee receives a sum 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 Class A 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, however,~~ provided that no such payment ~~shall~~ need be ~~required~~ made: (1i) if the Notes are surrendered for ~~conversions~~ conversion following the Regular Record Date immediately preceding the Maturity Date; ; (2ii) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the ~~Business~~ second Scheduled Trading Day immediately following the corresponding Interest Payment Date; ; (3iii) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or or (4iv) to the extent of any ~~Defaulted 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, any Redemption Date as described in Section 14.02(g)(ii) above and any Fundamental Change Repurchase Date described in Section 14.02(g)(iii) above shall receive and retain the full interest payment due on the Maturity Date, any Redemption Date described in ~~cash~~ Section 14.02(g)(ii) above, any Fundamental Change Repurchase Date, any Fundamental Change Repurchase Date described in Section 14.02(g)(iii) above or other applicable Interest Payment Date regardless of whether their Notes have been converted following such Regular Record ~~Date,~~ Date and the converting Holder ~~shall~~ will not be required to make ~~a corresponding~~ any interest payment. (ih) The Person in whose name any shares of Class A Common Stock ~~shall be issuable~~ delivered upon conversion are registered shall ~~be treated as a stockholder~~ become the holder of record of such shares as of the close of business on (i) the relevant Conversion Date if the Company elects Physical Settlement or (ii) the last VWAP Trading Day of the relevant Observation ~~Period~~Period if the Company elects or is deemed to have elected Combination Settlement. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion; provided that (a) the converting Holder shall have the right to receive the Settlement Amount due upon conversion and (b) in the case of a conversion between a Regular Record Date and the corresponding Interest Payment Date, the Holder of record as of the close of business on such Regular Record Date shall have the right to receive the interest payable on such Interest Payment Date, in accordance with Section 14.02(g). (ji) The Company shall not issue any fractional share of Class A Common Stock upon conversion of the Notes and shall instead pay cash in lieu of ~~delivering~~ any fractional share of Class A Common Stock issuable upon conversion in an amount based on (i) the Daily VWVWAP on the relevant Conversion Date if the Company elects Physical Settl

Appears in 1 contract

Sources: Indenture (DISH Network 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~~ 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, ~~solely~~ cash (“Cash Settlement”), shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02. (i) All conversions ~~of Notes called for redemption~~ occurring (~~or deemed called for redemption pursuant to Section 14.01(b)(v)~~x) ~~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 October 115, ~~2028,~~ 2022 or (y) during a Redemption Period shall be settled using the same Settlement Method. (ii) Except for any conversions ~~referred to in Section 14.02(a)(i)~~ for which the relevant Conversion Date occurs during a Redemption ~~Period,~~ Period and any conversions for which the relevant Conversion Date occurs on or after October 115, ~~2028~~2022, the Company shall use the same Settlement Method for all conversions ~~with~~ occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions ~~with~~ that occur on different Conversion Dates. (iii) If, in respect of any Conversion Date (or one of the ~~period~~ periods described in the fourth immediately succeeding set of parentheses, as the case may be), the Company elects to a Settlement Method, the Company shall deliver a written notice (the “Settlement Notice”) of the ~~relevant~~ Settlement Method so elected in respect of such Conversion Date (or such period, as the case may be~~), the Company shall deliver such Settlement Notice in writing~~ ) to converting ~~Holders (with a written copy to~~ Holders, the Trustee and the Conversion Agent (if other than the Trustee)) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions occurring (x) ~~any 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 a ~~related~~ Redemption Period, in ~~the relevant~~ such Redemption Notice, or (y) ~~any conversions of Notes for which the relevant Conversion Date occurs~~ on or after October 115, ~~2028~~2022, no later than the close of business on the Business Day immediately preceding October 115, ~~2028~~2022). If the Company calls all or any Notes for redemption and the related Redemption Date is on or after October 1, 2028, then the 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 October 1, 2028. If the Company does not timely elect a Settlement Method ~~with respect to a conversion~~ prior to the deadline set forth in the ~~second~~ immediately preceding sentence, ~~then~~ the Company shall no longer have the right to elect a Cash Settlement ~~Method~~ or Physical Settlement for such conversion or during such period and the Company shall be deemed to have elected ~~the Default~~ Combination Settlement ~~Method~~ in respect of its Conversion Obligation, and the Specified Dollar Amount per $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 ~~to Holders (with a written copy to the Trustee and the Conversion Agent (if other than the Trustee))~~ 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 shall have the right, from time to time prior to October 1, 2028, to change the Default Settlement Method to any Settlement Method that the Company is then permitted to elect, by sending notice to the Holders of the new Default Settlement Method (and, in such case, the Company will simultaneously send a copy of such notice to the Trustee and the Conversion Agent (if other than the Trustee)). In addition, by notice to Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to October 1, 2028, at its option, elect to (1) irrevocably fix the Settlement Method or (2) irrevocably eliminate any one or more (but not all) Settlement Methods (including eliminating Combination Settlement Method with a particular Specified Dollar Amount or range of Specified Dollar Amounts); provided the Company is then otherwise permitted to elect the applicable Settlement Method(s) so irrevocably elected or the Settlement Method(s) remaining after such irrevocable elimination, as applicable, and provided further, that in no event may the Company elect (whether directly or by eliminating all other Settlement Methods) Combination Settlement with a Specified Dollar Amount that is less than $1,000 per $1,000 principal amount of Notes. If the Company makes such an irrevocable election, then such election will apply to all conversions of Notes with a Conversion Date that is on or after the date the Company sends such notice and the Company shall, if needed, simultaneously change the Default Settlement Method to a Settlement Method that is consistent with such irrevocable election. Notwithstanding the foregoing, no such irrevocable election or change of Default Settlement Method, as applicable, 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 changes the Default Settlement Method or makes an irrevocable election, as applicable, pursuant to the immediately preceding paragraph, then, promptly, but in any event within two Business Days, the Company shall either post the Default Settlement Method or such irrevocable election, as applicable, on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with, or furnished to, the Commission. (iv) The ~~cash~~ cash, shares of Common Stock or combination of cash and shares of Common ~~Stock, if any,~~ 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 (BC) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 40 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company ~~as soon as reasonably practicable~~ promptly following the last day of the Observation Period. ~~Following~~ 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 for converting a beneficial interest in a Global Note 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, if required, pay all transfer or similar taxes, if any, as set forth in Section 14.02(d) and Section 14.02(e)) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver ~~a medallion-stamped guaranteed~~ an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a “Notice 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 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 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. ~~Subject to any procedures or requirements of the applicable Depositary in the case of any Global Note, if~~ If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the second Business Day immediately following the last Trading Day of the relevant Observation Period, in the case of any other Settlement Method; provided that, with respect to any Conversion Date occurring during a Redemption Period or on or after October 15, 2022, (x) the Company will settle any such conversion for which Physical Settlement is applicable on the relevant Redemption Date or the Maturity Date, as applicable and (y) the Company will settle any such conversion for which Cash Settlement or Combination Settlement is applicable on the third Business Day immediately following the last Trading Day of the relevant Observation Period). If any shares of Common Stock are due to a converting ~~Holder~~Holders, the Company shall issue ~~and deliver (~~or ~~otherwise~~ cause to be ~~issued~~ issued, and ~~delivered)~~ deliver to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common Stock to which such Holder shall be ~~entitled, in book-entry format through the Depositary,~~ entitled in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in ~~Authorized Denominations~~ authorized denominations in an aggregate principal amount 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 or delivery~~ 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 ~~Company~~ Conversion Agent 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 ~~Company~~ Trustee receives a sum 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 and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; ~~provided, however,~~ provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a ~~Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a~~ Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately ~~following~~ succeeding the corresponding Interest Payment Date; (3) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the corresponding Interest Payment Date; or (4) to the extent of any ~~Defaulted Amounts~~overdue interest, if any ~~Defaulted Amounts~~ overdue interest exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record ~~as of the close of business~~ on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date 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 ~~shall be issuable~~ delivered 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~~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 VWVWAP 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 (Coupa Software 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, ~~solely~~ cash (“Cash Settlement”), ~~or a combination of cash and~~ shares of ~~Common~~ Class C Capital Stock, together with cash, if applicable, in lieu of delivering any fractional share of ~~Common~~ Class C Capital Stock in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Class C Capital Stock, together with cash, if applicable, in lieu of delivering any fractional share of Class C Capital Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02. (i) All conversions ~~of 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~~on or after April 1, 2023, and all conversions for which the relevant Conversion Date occurs ~~on or~~ after ~~October 1, 2028~~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 ~~referred to in Section 14.02(a)(i)~~ for which the relevant Conversion Date occurs ~~during~~ after the Company’s issuance of a Redemption ~~Period~~Notice with respect to the Notes but prior to the related Redemption Date, and any conversions for which the relevant Conversion Date occurs on or after ~~October~~ April 1, ~~2028~~2023, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion Date (or one of the ~~period~~ periods described in the ~~fourth~~ third immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the ~~Company~~ Company, through the Trustee, 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 ~~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~~ (x) after the date of issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption ~~Period~~Date, in ~~the relevant~~ such Redemption ~~Notice,~~ Notice or (y) ~~any conversions of Notes for which the relevant Conversion Date occurs~~ on or after ~~October~~ April 1, ~~2028~~2023, no later than ~~October~~ April 1, ~~2028~~2023). If the Company calls all or any Notes for redemption and the related Redemption Date is on or after October 1, 2028, then the 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 October 1, 2028. If the Company does not elect a Settlement Method ~~with respect to a conversion~~ prior to the deadline set forth in the ~~second~~ immediately preceding sentence, ~~then~~ the Company shall no longer have the right to elect a Cash Settlement ~~Method for such conversion~~ or Physical Settlement and the Company shall be deemed to have elected ~~the Default~~ Combination Settlement ~~Method~~ in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. 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 (with a written copy to the Trustee and the Conversion Agent (if other than the Trustee))~~ 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 shall have the right, from time to time prior to October 1, 2028, to change the Default Settlement Method to any Settlement Method that the Company is then permitted to elect, by sending notice to the Holders of the new Default Settlement Method (and, in such case, the Company will simultaneously send a copy of such notice to the Trustee and the Conversion Agent (if other than the Trustee)). In addition, by notice to Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to October 1, 2028, at its option, elect to (1) irrevocably fix the Settlement Method or (2) irrevocably eliminate any one or more (but not all) Settlement Methods (including eliminating Combination Settlement Method with a particular Specified Dollar Amount or range of Specified Dollar Amounts); provided the Company is then otherwise permitted to elect the applicable Settlement Method(s) so irrevocably elected or the Settlement Method(s) remaining after such irrevocable elimination, as applicable, and provided further, that in no event may the Company elect (whether directly or by eliminating all other Settlement Methods) Combination Settlement with a Specified Dollar Amount that is less than $1,000 per $1,000 principal amount of Notes. If the Company makes such an irrevocable election, then such election will apply to all conversions of Notes with a Conversion Date that is on or after the date the Company sends such notice and the Company shall, if needed, simultaneously change the Default Settlement Method to a Settlement Method that is consistent with such irrevocable election. Notwithstanding the foregoing, no such irrevocable election or change of Default Settlement Method, as applicable, 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 changes the Default Settlement Method or makes an irrevocable election, as applicable, pursuant to the immediately preceding paragraph, then, promptly, but in any event within two Business Days, the Company shall either post the Default Settlement Method or such irrevocable election, as applicable, on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with, or furnished to, the Commission. (iv) The ~~cash~~ cash, shares of Class C Capital Stock or combination of cash and shares of ~~Common Stock, if any,~~ Class C Capital Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Class C Capital Stock equal to the Conversion Rate in effect on the Conversion Date; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 50 20 consecutive Trading Days during the related Observation Period; and (BC) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 20 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company ~~as soon as reasonably practicable~~ promptly following the last day of the Observation Period. ~~Following~~ 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~~ Class C Capital Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of ~~Common~~ Class C Capital Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section 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 (1) complete, manually sign and deliver ~~a medallion-stamped guaranteed~~ 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~~ Class C Capital Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay ~~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 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 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. ~~Subject to any procedures or requirements of the applicable Depositary in the case of any Global Note, if~~ If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the ~~second~~ third Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Company shall deliver the consideration due in respect of the Conversion Obligation on the Maturity Date), or on the 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~~ Class C Capital Stock are due to a converting Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or ~~otherwise cause to be issued and delivered)~~ to such Holder, or such Holder’s nominee or nominees, the full number of shares of ~~Common~~ Class C Capital Stock to which such Holder shall be entitled, in certificate form or in book-entry ~~format through the Depositary~~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~~ authorized denominations in an aggregate principal amount 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~~ Class C Capital Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The ~~Company~~ Conversion Agent may refuse to deliver the certificates ~~(or book-entry evidence)~~ representing the shares of ~~Common~~ Class C Capital Stock being issued in a name other than the Holder’s name until the ~~Company~~ Trustee receives a sum 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~~ Class C Capital 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~~ Class C Capital Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; ~~provided, however,~~ provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to ~~the Business Day immediately following~~ the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record ~~as of the close of business~~ on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date~~, and the converting Holder shall not be required to make a corresponding payment~~. (i) The Person in whose name ~~any~~ the shares of ~~Common~~ Class C Capital Stock shall be issuable upon conversion shall be treated as a stockholder of record ~~of such shares~~ as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation ~~Period~~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~~ Class C Capital Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of ~~Common~~ Class C Capital Stock issuable upon conversion based on the Daily VWVWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of 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 (Zillow 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~~ 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, ~~solely~~ cash (“Cash Settlement”), shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with ~~cash~~a cash payment, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02. (i) All conversions ~~of 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~~ (x) on or after ~~October 1~~January 15, ~~2028~~2026 or (y) during a Redemption Period, shall be settled using the same Settlement Method. (ii) Except for any conversions ~~referred to in Section 14.02(a)(i)~~ for which the relevant Conversion Date occurs during a Redemption ~~Period,~~ Period and any conversions for which the relevant Conversion Date occurs on or after ~~October 1~~January 15, ~~2028~~2026, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion Date (or the period described in the ~~fourth~~ 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 shall deliver such Settlement Notice in writing to converting ~~Holders (with a written copy to~~ Holders, the Trustee and the Conversion Agent (if other than the Trustee)) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of ~~(x)~~ any conversions ~~of Notes called for redemption (or deemed called for redemption pursuant to Section 14.01(b)(v))~~ for which the relevant Conversion Date occurs (x) during a ~~related~~ Redemption Period, in ~~the relevant~~ such Redemption Notice, or (y) ~~any conversions of Notes for which the relevant Conversion Date occurs~~ on or after ~~October 1~~January 15, ~~2028~~2026, no later than ~~October 1~~January 15, ~~2028~~2026). If the Company calls all or any Notes for redemption and the related Redemption Date is on or after October 1, 2028, then the 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 October 1, 2028. If the Company does not elect a Settlement Method ~~with respect to a conversion~~ prior to the deadline set forth in the ~~second~~ immediately preceding sentence, ~~then~~ the Company shall no longer have the right to elect a Cash Settlement ~~Method for~~ or Physical Settlement with respect to any conversion on such ~~conversion~~ Conversion Date or during such period, as the case may be, and the Company shall be deemed to have elected ~~the Default~~ Combination Settlement ~~Method~~ in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. 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~~Notes to be converted. If the Company delivers a Settlement Notice ~~to Holders (with a written copy to the Trustee and the Conversion Agent (if other than the Trustee))~~ 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. The Company shall have the right, from time to time prior to October 1, 2028, to change the Default Settlement Method to any Settlement Method that the Company is then permitted to elect, by sending notice to the Holders of the new Default Settlement Method (and, in such case, the Company will simultaneously send a copy of such notice to the Trustee and the Conversion Agent (if other than the Trustee)). In addition, by notice to Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to October 1, 2028, at its option, elect to (1) irrevocably fix the Settlement Method or (2) irrevocably eliminate any one or more (but not all) Settlement Methods (including eliminating Combination Settlement Method with a particular Specified Dollar Amount or range of Specified Dollar Amounts); provided the Company is then otherwise permitted to elect the applicable Settlement Method(s) so irrevocably elected or the Settlement Method(s) remaining after such irrevocable elimination, as applicable, and provided further, that in no event may the Company elect (whether directly or by eliminating all other Settlement Methods) Combination Settlement with a Specified Dollar Amount that is less than $1,000 per $1,000 principal amount of Notes. If the Company makes such an irrevocable election, then such election will apply to all conversions of Notes with a Conversion Date that is on or after the date the Company sends such notice and the Company shall, if needed, simultaneously change the Default Settlement Method to a Settlement Method that is consistent with such irrevocable election. Notwithstanding the foregoing, no such irrevocable election or change of Default Settlement Method, as applicable, 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 changes the Default Settlement Method or makes an irrevocable election, as applicable, pursuant to the immediately preceding paragraph, then, promptly, but in any event within two Business Days, the Company shall either post the Default Settlement Method or such irrevocable election, as applicable, on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with, or furnished to, the Commission. (iv) The ~~cash~~ cash, shares of Common Stock or combination of cash and shares of Common ~~Stock, if any,~~ 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 10 consecutive Trading Days during the related Observation Period; and (BC) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 10 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 ~~as soon as reasonably practicable~~ promptly following the last day of the Observation Period. ~~Following~~ 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 ~~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 ~~a medallion-stamped guaranteed~~ 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 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 surrendered by a Holder thereof if such ▇▇▇▇▇▇ has also delivered a ~~Fundamental Change~~ Repurchase Event Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such ~~Fundamental Change~~ Repurchase Event Repurchase Notice in accordance with Section 15.03~~. Subject to any procedures or requirements of the applicable Depositary~~ , in the case of ~~any~~ Physical Notes, or through the applicable procedures of the Depositary, in the case of Global ~~Note, if~~ Notes. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall ~~pay or deliver, as the case may be,~~ deliver the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the second Business Day immediately following the last Trading Day of the ~~relevant~~ Observation Period, in the case of any other Settlement Method. If any shares of Common Stock are due to a converting ~~Holder~~Holders, the Company shall issue ~~and deliver (~~or ~~otherwise~~ cause to be ~~issued~~ issued, and ~~delivered)~~ 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 book-entry format through the Depositary,~~ entitled in satisfaction of the Company’s Conversion Obligation. (d) In case any Physical Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in ~~Authorized Denominations~~ authorized denominations in an aggregate principal amount 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 Company shall work directly with its stock transfer agent to effect any delivery of Common Stock in connection with a conversion. The Conversion Agent 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 ~~Company~~ Trustee receives a sum 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~~ 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~~excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~not including~~excluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; ~~provided, however,~~ provided that no such payment shall be required (1i) for conversions ~~following~~ after the close of business on the Regular Record Date immediately preceding the Maturity Date; (2ii) if the Company has specified a ~~Redemption~~ Repurchase Event Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3iii) if the Company has specified a ~~Fundamental Change Repurchase~~ Redemption Date that is after a Regular Record Date and on or prior to the ~~Business Day~~ second Scheduled Trading day immediately ~~following~~ succeeding the corresponding Interest Payment Date; or (4iv) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record ~~as of~~ after the close of business on the Regular Record Date immediately preceding the Maturity Date, any Repurchase Event Repurchase Date or Redemption Date, in each case, as described above, shall receive the full interest payment in cash due on the Maturity Date ~~in cash~~ or other applicable Interest Payment Date regardless of whether their Notes have been converted or redeemed following such Regular Record Date~~, and the converting Holder shall not be required to make a corresponding payment~~. (i) The Person in whose name ~~any~~ the shares of Common Stock shall be issuable upon conversion shall be treated as a stockholder of record ~~of such shares~~ as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation ~~Period~~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 VWVWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of 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: Supplemental Indenture (NantHealth, 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, ~~solely~~ cash (“Cash Settlement”), shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection ‎(j) of this ‎Section 14.02, (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j‎(j) of this ~~Section~~ ‎Section 14.02 (“Combination Settlement”), at 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 ~~October 1, 2028~~the Final Settlement Method Election Date and all conversions for which the relevant 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 (x) any conversions ~~referred to in Section 14.02(a)(i)~~ for which the relevant Conversion Date occurs ~~during~~ after the Company’s issuance of a Redemption ~~Period,~~ Notice with respect to the Notes but prior to the related Redemption Date and for (y) any conversions for which the relevant Conversion Date occurs on or after ~~October 1~~the Final Settlement Method Election Date (each of the periods in clauses (x) and (y), ~~2028~~the “Specified Periods”), the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion Date (or ~~the period described in the fourth immediately succeeding set of parentheses~~for all Conversion Dates during a Specified Period, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company shall deliver such Settlement Notice ~~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 ~~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 Specified Period (x) after the date of issuance of a Redemption Notice and prior to the related Redemption ~~Period~~Date, in ~~the relevant~~ such Redemption ~~Notice,~~ Notice or (y) ~~any conversions of Notes for which the relevant Conversion Date occurs~~ on or after ~~October 1, 2028~~the Final Settlement Method Election Date, no later than ~~October 1, 2028). If~~ the ~~Company calls all or any Notes for redemption and the related Redemption Date is on or after October 1, 2028, then the~~ Final 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 October 1, 2028Election date). If the Company does not elect a Settlement Method ~~with respect to a conversion~~ prior to the deadline set forth in the ~~second~~ immediately preceding sentence, ~~then~~ the Company shall no longer have the right to elect a Cash Settlement ~~Method for such conversion~~ or Physical Settlement and the Company shall be deemed to have elected ~~the Default~~ Combination Settlement ~~Method~~ in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. 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 (with a written copy to the Trustee and the Conversion Agent (if other than the Trustee))~~ 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 shall have the right, from time to time prior to October 1, 2028, to change the Default Settlement Method to any Settlement Method that the Company is then permitted to elect, by sending notice to the Holders of the new Default Settlement Method (and, in such case, the Company will simultaneously send a copy of such By notice to the Trustee and to Holders, in respect of any conversion of Notes following the ~~Conversion Agent~~ Company’s delivery of a Settlement Notice and as to which a Settlement Method does not apply (~~if other than the Trustee)). In addition, by notice~~ or is not deemed to ~~Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee),~~ have applied) the Company may~~, prior to October 1, 2028~~, at its option, irrevocably elect to ~~(1) irrevocably fix~~ satisfy its Conversion Obligation with respect to the Settlement Method or (2) irrevocably eliminate any one or more (but not all) Settlement Methods (including eliminating Combination Settlement Method with a particular Specified Dollar Amount or range of Specified Dollar Amounts); provided the Company is then otherwise permitted to elect the applicable Settlement Method(s) so irrevocably elected or the Settlement Method(s) remaining after such irrevocable elimination, as applicable, and provided further, that in no event may the Company elect (whether directly or by eliminating all other Settlement Methods) Notes through Combination Settlement with a Specified Dollar Amount ~~that is less than $1,000~~ per $1,000 principal amount of ~~Notes. If the Company makes~~ Notes of $1,000 for all such an irrevocable election, then such election will apply to all conversions of Notes with a Conversion Date that is on or after the date the Company sends such notice and the Company shall, if needed, simultaneously change the Default Settlement Method to a Settlement Method that is consistent with such irrevocable election. Notwithstanding the foregoing, no such irrevocable election or change of Default Settlement Method, as applicable, 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 changes the Default Settlement Method or makes an irrevocable election, as applicable, pursuant to the immediately preceding paragraph, then, promptly, but in any event within two Business Days, the Company shall either post the Default Settlement Method or such irrevocable election, as applicable, on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with, or furnished to, the Commission.conversions (iv) The cash, shares of Common Stock (and cash in lieu of any fractional shares) or a combination of cash and shares of Common ~~Stock, if any,~~ 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 30 consecutive Trading Days during the related Observation Period; and (BC) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 50 30 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company ~~as soon as reasonably practicable~~ promptly following the last day of the applicable Observation Period. ~~Following~~ 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 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,~~ complete and manually sign ~~and deliver a medallion-stamped guaranteed~~ 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~~registered and deliver such Notice of Conversion to the Conversion Agent, (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 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 with respect to such Notes in accordance with ~~Section~~ ‎Section 15.03. ~~Subject to any procedures or requirements of the applicable Depositary in the case of any Global Note, if~~ If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b‎(b) above. Except as set forth in ~~Section~~ ‎Section 14.03(b) and ~~Section~~ ‎Section 14.07(a), the Company shall ~~pay~~ satisfy its Conversion Obligation by paying or ~~deliver~~delivering, as the case may be, the consideration due in respect of the Conversion Obligation (i) on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement; or (ii) on the second Business Day immediately following the last Trading Day of the ~~relevant~~ Observation Period, in the case of any other Settlement Method. If any shares of Common Stock are due to a converting ~~Holder~~Holders, the Company shall issue ~~and deliver (~~or ~~otherwise~~ cause to be ~~issued~~ issued, and ~~delivered)~~ 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 book-entry format through the Depositary,~~ entitled in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in ~~Authorized Denominations~~ authorized denominations in an aggregate principal amount 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~~Company, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax ~~or similar governmental charge required by law or~~ that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different 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 ~~Company~~ Conversion Agent 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 ~~Company~~ Trustee receives a sum 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~~Stock (if 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 interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; ~~provided, however,~~ provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately ~~following~~ succeeding the ~~corresponding Interest Payment Date;~~ date such interest is paid, (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately ~~following~~ succeeding the ~~corresponding Interest Payment Date~~date such interest is paid; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note~~. Therefore,~~ . (i) The Person in whose name the certificate for ~~the avoidance~~ any shares of ~~doubt, all Holders~~ Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the ~~Regular Record~~ relevant Conversion Date ~~immediately preceding~~ (if the ~~Maturity Date shall receive~~ Company elects to satisfy the full interest payment due on the Maturity 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. (irelated Conversion Obligation by Physical Settlement) ~~The Person in whose name any shares of Common Stock shall be issuable upon conversion shall be treated as a stockholder of record of such shares as of the close of business on~~ or the last Trading Day of the relevant Observation ~~Period~~Period (if the Company elects (or is deemed to have elected) to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional share of Common 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 VWVWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or has been 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 (PTC Therapeutics, 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, ~~solely~~ cash (“Cash Settlement”), shares of Common Stock, together with cash, if applicable, in lieu of any fractional share of Common Stock in accordance with subsection (j) of this Section 11.02 (“Stock Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of ~~delivering~~ any fractional share of Common Stock in accordance with subsection (j) of this Section ~~14.02~~ 11.02 (“Combination Settlement”), at its election, as set forth in this Section ~~14.02~~11.02. (i) All conversions ~~of Notes called for redemption (or deemed called for redemption pursuant to Section 14.01(b)(v)) for which the relevant~~ occurring on a given Conversion Date that occurs ~~during~~ prior to the ~~related Redemption Period, and all~~ Final Period Date shall be settled using the same Settlement Method. All conversions ~~for which~~ occurring after the ~~relevant Conversion~~ Final Period Date ~~occurs on or after October 1, 2028,~~ shall be settled using the same Settlement Method. (ii) Except for any conversions ~~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~~ occurring on or after ~~October 1, 2028,~~ the ~~Company shall use the same Settlement Method for all conversions with the same Conversion~~ Final Period Date, ~~but~~ the Company shall not have any obligation to use the same Settlement Method with respect to conversions ~~with~~ that occur on different Conversion Dates. (iii) If, in respect of any Conversion Date ~~(or~~ occurring prior to the ~~period described in the fourth immediately succeeding set of parentheses, as the case may be)~~Final Period Date, 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)~~Date, the ~~Company~~ Company, through the Conversion Agent, shall deliver such Settlement Notice ~~in writing to converting Holders (with a written copy~~ to the ~~Trustee and~~ Trustee, the Conversion Agent (if other than the Trustee)) and converting Holders no later than the ~~close of business on the~~ second Trading Day immediately following the relevant Conversion Date (or, in the case of ~~(x)~~ any 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 a related Redemption Period, in the relevant Redemption Notice, or (y) any conversions of Notes for which the relevant Conversion Date occurs occurring on or after ~~October 1, 2028~~the Final Period Date, no later than ~~October 1, 2028~~the Final Period Date). If the Company calls all or any Notes for redemption and the related Redemption Date is on or after October 1, 2028, then the 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 October 1, 2028. If the Company does not elect a Settlement Method ~~with respect to a conversion~~ prior to the deadline set forth in the ~~second~~ immediately preceding sentence, ~~then~~ the Company shall no longer have the ~~right~~ right, with respect to a particular Conversion Date, or the period following the Final Period Date, as applicable, to elect a Cash Settlement ~~Method for such conversion~~ or Stock Settlement and the Company shall be ~~deemed~~ deemed, with respect to a particular Conversion Date, or the period following the Final Period Date, as applicable, to have elected ~~the Default~~ Combination Settlement ~~Method~~ in respect of its Conversion ~~Obligation~~Obligation with the Specified Dollar Amount 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~~ Notice, with respect to ~~Holders (with~~ a ~~written copy to~~ particular Conversion Date, or the ~~Trustee and~~ period following the ~~Conversion Agent (if other than the Trustee))~~ Final Period Date, as applicable, 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~~ Amount, with respect to a particular Conversion Date, or the period following the Final Period Date, as applicable, shall be deemed to be $1,000. . (iv) The Company shall have the right, from time to time prior to October 1, 2028, to change the Default Settlement Method to any Settlement Method that the Company is then permitted to elect, by sending notice to the Holders of the new Default Settlement Method (and, in such case, the Company will simultaneously send a copy of such notice to the Trustee and the Conversion Agent (if other than the Trustee)). In addition, by notice to Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to ~~October 1, 2028~~the Final Period Date, at its option, irrevocably elect ~~to (1) irrevocably fix the Settlement Method or (2) irrevocably eliminate any one or more (but not all) Settlement Methods (including eliminating~~ a Combination Settlement ~~Method~~ with a particular Specified Dollar Amount ~~or range~~ for all conversions subsequent to its notice by notice of ~~Specified Dollar Amounts); provided the Company is then otherwise permitted~~ such election to elect the applicable Settlement Method(s) so irrevocably elected or the Settlement Method(s) remaining after such irrevocable elimination, as applicable, and provided further, that in no event may the Company elect (whether directly or by eliminating all ~~other Settlement Methods) Combination Settlement with a Specified Dollar Amount that is less than $1,000 per $1,000 principal amount~~ Holders of Notes. If the Company makes such an irrevocable election, then such election will apply to all conversions of Notes with a Conversion Date that is on or after the date the Company sends such notice and the Company shall, if needed, simultaneously change the Default Settlement Method to a Settlement Method that is consistent with such irrevocable election. Notwithstanding the foregoing, no such irrevocable election or change of Default Settlement Method, as applicable, 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 changes the Default Settlement Method or makes an irrevocable election, as applicable, pursuant to the immediately preceding paragraph, then, promptly, but in any event within two Business Days, the Company shall either post the Default Settlement Method or such irrevocable election, as applicable, on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with, or furnished to, the Commission. (ivv) The ~~cash~~ cash, shares of Common Stock or combination of cash and shares of Common ~~Stock, if any,~~ 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 Stock Settlement, the Company shall deliver to the converting Holder 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 consecutive Trading Days during the related ~~Observation~~ Conversion Period; and (BC) 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~~ deliver to the ~~case may be,~~ 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~~ Conversion Period. (vvi) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company ~~as soon as reasonably practicable~~ promptly following the last day of the ~~Observation~~ Conversion Period. ~~Following~~ 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~~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 ~~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~~11.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver ~~a medallion-stamped guaranteed~~ 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 to the Company funds equal to interest payable on the next Interest Payment Date 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 surrendered by a Holder thereof if such ▇▇▇▇▇▇ 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. Subject to any procedures or requirements of the applicable Depositary in the case of any Global Note, if more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 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 second Business Day immediately following the last Trading Day of the relevant Observation Period. If any shares of Common Stock are due to a converting Holder, the Company shall issue and deliver (or otherwise cause to be issued and delivered) to such Holder, or such Holder’s nominee or nominees, the full number of shares of Common Stock to which such Holder shall be entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in Authorized Denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue or delivery of any shares of Common 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 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 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, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided, however, that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record as of the close of business on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due on the Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date, and the converting Holder shall not be required to make a corresponding payment. (i) The Person in whose name any shares of Common Stock shall be issuable upon conversion shall be treated as a stockholder of record of such shares as of the close of business on the last Trading Day of the relevant Observation 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 VWfunds

Appears in 1 contract

Sources: First Supplemental Indenture (Verint Systems Inc)

Appears in 1 contract

Sources: Indenture (Euronet Worldwide Inc)

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